Exhibit
4.4


 




 


 





INDENTURE


 


 


by and between


 


 


OMX Timber Finance Investments I, LLC,


as the Issuer,


 


 


and


 


 


WELLS FARGO BANK NORTHWEST, N.A.,


not in its individual capacity but solely in its capacity


as the Indenture Trustee


 


 


Dated
as of December 21, 2004


 




 





 


$735,000,000
(approximate) Class A-1 Notes due 2019


Secured by $817,500,000
Installment Notes Guaranteed by Wachovia Corporation


 

















 


TABLE OF CONTENTS


 


	
    

   	
    

   	
   Page

   
	
   

  	
   

  	
   

  
	
  ARTICLE
  I

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
  Section 1.02.

  	
  Rules of
  Construction

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
  THE
  NOTES

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Form

  	
  12

  
	
  Section 2.02.

  	
  Execution,
  Authentication and Delivery

  	
  12

  
	
  Section 2.03.

  	
  Opinions
  of Counsel

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  	
  COVENANTS

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 3.01. 

  	
  Collection of Payments on Indenture Collateral; Class A-1
  Notes Account 

  	
  13 

  
	
  Section 3.02.

  	
  Maintenance
  of Office or Agency

  	
  13

  
	
  Section 3.03.

  	
  Money
  for Payments To Be Held in Trust; Paying Agent

  	
  13

  
	
  Section 3.04.

  	
  Existence;
  Separate Legal Existence

  	
  15

  
	
  Section 3.05.

  	
  Payment
  of Principal and Interest

  	
  15

  
	
  Section 3.06.

  	
  Protection
  of Indenture Collateral

  	
  15

  
	
  Section 3.07.

  	
  Opinions
  as to Indenture Collateral

  	
  16

  
	
  Section 3.08.

  	
  Furnishing
  of Rule 144A Information

  	
  16

  
	
  Section 3.09.

  	
  Performance
  of Obligations

  	
  17

  
	
  Section 3.10.

  	
  Negative
  Covenants

  	
  17

  
	
  Section 3.11.

  	
  Annual
  Statement as to Compliance

  	
  18

  
	
  Section 3.12.

  	
  Recording
  of Assignments

  	
  18

  
	
  Section 3.13.

  	
  Investment
  Company Act

  	
  18

  
	
  Section 3.14.

  	
  Issuer
  May Consolidate, etc., only on Certain Terms

  	
  18

  
	
  Section 3.15.

  	
  No
  Other Business

  	
  18

  
	
  Section 3.16.

  	
  No
  Borrowing

  	
  19

  
	
  Section 3.17.

  	
  Use
  of Initial Proceeds

  	
  19

  
	
  Section 3.18.

  	
  Guarantees,
  Loans, Advances and Other Liabilities

  	
  19

  
	
  Section 3.19.

  	
  Capital
  Expenditures

  	
  19

  
	
  Section 3.20.

  	
  Representations
  and Warranties of the Issuer

  	
  19

  
	
  Section 3.21.

  	
  Restricted
  Payments

  	
  21

  
					



 


i

















 


TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 3.22.

  	
  Notice
  of Events of Default

  	
  21

  
	
  Section 3.23.

  	
  Further
  Instruments and Acts

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV 

  	
  THE NOTES; SATISFACTION AND DISCHARGE OF INDENTURE
  

  	
  22 

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  The
  Notes

  	
  22

  
	
  Section 4.02.

  	
  Registration
  of Transfer and Exchange of Notes

  	
  22

  
	
  Section 4.03.

  	
  Mutilated,
  Destroyed, Lost or Stolen Notes

  	
  27

  
	
  Section 4.04. 

  	
  Payment of Principal and Interest; Extension of
  Maturity Date; Defaulted Interest 

  	
  28 

  
	
  Section 4.05.

  	
  Tax
  Treatment

  	
  29

  
	
  Section 4.06.

  	
  Satisfaction
  and Discharge of Indenture

  	
  30

  
	
  Section 4.07.

  	
  Application
  of Trust Money

  	
  31

  
	
  Section 4.08.

  	
  Repayment
  of Moneys Held by Paying Agent

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  REMEDIES

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Events
  of Default

  	
  31

  
	
  Section 5.02.

  	
  Acceleration
  of Maturity; Rescission and Annulment

  	
  32

  
	
  Section 5.03. 

  	
  Collection of Indebtedness and Suits for
  Enforcement by Indenture Trustee 

  	
  33 

  
	
  Section 5.04.

  	
  Remedies;
  Priorities

  	
  35

  
	
  Section 5.05.

  	
  Optional
  Preservation of the Indenture Collateral

  	
  36

  
	
  Section 5.06.

  	
  Limitation
  of Suits

  	
  37

  
	
  Section 5.07. 

  	
  Unconditional Rights of Holders To Receive
  Principal and Interest 

  	
  37 

  
	
  Section 5.08.

  	
  Restoration
  of Rights and Remedies

  	
  37

  
	
  Section 5.09.

  	
  Rights
  and Remedies Cumulative

  	
  38

  
	
  Section 5.10.

  	
  Delay
  or Omission Not a Waiver

  	
  38

  
	
  Section 5.11.

  	
  Control
  by Holders

  	
  38

  
	
  Section 5.12.

  	
  Waiver
  of Past Defaults

  	
  39

  
	
  Section 5.13.

  	
  Undertaking
  for Costs

  	
  39

  
	
  Section 5.14.

  	
  Waiver
  of Stay or Extension Laws

  	
  39

  
	
  Section 5.15.

  	
  Sale
  of Indenture Collateral

  	
  40

  
				



 


ii

















 


TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 5.16.

  	
  Action
  on Notes

  	
  41

  
	
  Section 5.17.

  	
  Performance
  and Enforcement of Certain Obligations

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  THE
  INDENTURE TRUSTEE

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Duties
  of Indenture Trustee

  	
  41

  
	
  Section 6.02.

  	
  Rights
  of Indenture Trustee

  	
  43

  
	
  Section 6.03.

  	
  Individual
  Rights of Indenture Trustee

  	
  43

  
	
  Section 6.04.

  	
  Indenture
  Trustee’s Disclaimer

  	
  44

  
	
  Section 6.05.

  	
  Notice
  of Event of Default

  	
  44

  
	
  Section 6.06.

  	
  Reports
  by Indenture Trustee to Holders

  	
  44

  
	
  Section 6.07.

  	
  Compensation
  and Indemnity

  	
  44

  
	
  Section 6.08.

  	
  Replacement
  of Indenture Trustee

  	
  45

  
	
  Section 6.09.

  	
  Successor
  Indenture Trustee by Merger

  	
  46

  
	
  Section 6.10. 

  	
  Appointment of Co–Indenture Trustee or Separate
  Indenture Trustee 

  	
  47 

  
	
  Section 6.11.

  	
  Eligibility;
  Disqualification

  	
  48

  
	
  Section 6.12. 

  	
  Representations, Warranties and Covenants of
  Indenture Trustee 

  	
  48 

  
	
  Section 6.13.

  	
  Directions
  to Indenture Trustee

  	
  49

  
	
  Section 6.14.

  	
  Conflicts

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII 

  	
  HOLDERS’
  LISTS AND REPORTS

  	
  50

  
	
   

  	
   

  	
   

  
	
  Section 7.01. 

  	
  Issuer To Furnish Indenture Trustee Names and
  Addresses of Holders 

  	
  50 

  
	
  Section 7.02.

  	
  Preservation
  of Information; Communications to Holders

  	
  50

  
	
  Section 7.03.

  	
  Fiscal
  Year

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII 

  	
  CLASS A-1
  NOTES ACCOUNT, DISBURSEMENTS AND RELEASES

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Collection
  of Money

  	
  51

  
	
  Section 8.02.

  	
  Class A-1
  Notes Account

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  SUPPLEMENTAL
  INDENTURES

  	
  52

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Supplemental
  Indentures Without Consent of Holders

  	
  52

  
	
  Section 9.02.

  	
  Supplemental
  Indentures With Consent of Holders

  	
  54

  
				



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 9.03.

  	
  Execution of Supplemental
  Indentures

  	
  55

  
	
  Section 9.04.

  	
  Effect of Supplemental
  Indenture

  	
  56

  
	
  Section 9.05.

  	
  Reference in Notes to
  Supplemental Indentures

  	
  56

  
	
  Section 9.06.

  	
  Amendment of this
  Indenture Generally

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  MISCELLANEOUS

  	
  56

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Compliance Certificates
  and Opinions, etc

  	
  56

  
	
  Section 10.02.

  	
  Form of Documents
  Delivered to Indenture Trustee

  	
  57

  
	
  Section 10.03.

  	
  Acts of Holders

  	
  57

  
	
  Section 10.04.

  	
  Notices, etc., to
  Indenture Trustee and Others

  	
  58

  
	
  Section 10.05.

  	
  Notices to Holders; Waiver

  	
  59

  
	
  Section 10.06.

  	
  Alternate Payment and
  Notice Provisions

  	
  59

  
	
  Section 10.07.

  	
  Effect of Headings

  	
  59

  
	
  Section 10.08.

  	
  Successors and Assigns

  	
  60

  
	
  Section 10.09.

  	
  Severability

  	
  60

  
	
  Section 10.10.

  	
  Benefits of Indenture

  	
  60

  
	
  Section 10.11.

  	
  Legal Holidays

  	
  60

  
	
  Section 10.12.

  	
  GOVERNING LAW

  	
  60

  
	
  Section 10.13.

  	
  Counterparts

  	
  61

  
	
  Section 10.14.

  	
  Issuer Obligation

  	
  61

  
	
  Section 10.15.

  	
  No Petition

  	
  61

  
	
  Section 10.16.

  	
  Inspection;
  Confidentiality

  	
  62

  
	
   

  	
   

  	
   

  
				



 


	
  EXHIBITS

  	
   

  	
   

  
	
  Exhibit A

  	
  —

  	
   Form of Class A-1  Note

  
	
  Exhibit B

  	
  —

  	
   Form of Wiring
  Instructions

  
	
  Exhibit C-1

  	
  —

  	
   Form of Transferee
  Letter

  
	
  Exhibit C-2

  	
  —

  	
  Form of
  Rule 144A Certification

  
	
  Exhibit D

  	
  —

  	
  Form of Redemption
  Notice

  
				



 


iv














 


INDENTURE


 


THIS INDENTURE, dated as of
December 21, 2004 (as amended, modified, restated, supplemented or waived
from time to time, the “Indenture”), is by and between OMX TIMBER FINANCE INVESTMENTS I, LLC, a
Delaware limited liability company, as the issuer (together with its successors
and assigns in such capacity, the “Issuer”), and WELLS FARGO BANK NORTHWEST, N.A., a
national banking association, not in its individual capacity but solely in its
capacity as the indenture trustee (together with its successors and assigns, in
such capacity, the “Indenture Trustee”).


 


Each
party agrees as follows for the benefit of the other party and for the equal
and ratable benefit of the Holders of the Issuer’s Notes.


 


GRANTING CLAUSE


 


The
Issuer Grants to the Indenture Trustee, on behalf of and for the benefit of the
Holders of the Notes, without recourse, subject to the terms of this Indenture
and the other Transaction Documents, a continuing security interest in and lien
on all of its right, title and interest in and to all of the property of the
Issuer consisting of, arising out of, or related to (i) the Installment
Notes and the Guaranty, (ii) any and all funds now or hereafter deposited
in or credited to the Class A-1 Notes Account, and (iii) all present
and future claims, demands and causes of action in respect of any or all of the
foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion, voluntary or involuntary, into cash or other liquid
property, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the “Indenture Collateral”).


 


The
foregoing Grant is made in trust to secure (x) the payment of principal of
and interest on, and any other amounts owing in respect of, the Notes and all
other sums owing by the Issuer hereunder or under any other Transaction
Document, and (y) to secure compliance with the covenants and agreement in
this Indenture and the other Transaction Documents.


 


The
Indenture Trustee, on behalf of the Holders (1) acknowledges such Grant,
and (2) accepts the trusts under this Indenture in accordance with this
Indenture and agrees to perform its duties required in this Indenture to the
best of its ability to the end that the interests of the Holders may be
adequately and effectively protected.


 


ARTICLE I            DEFINITIONS



 


Section 1.01. Definitions.


 


Certain
defined terms used throughout the Indenture are defined above or in this Section
1.01.


 


“Affiliate”
of any specified Person means any other Person controlling or controlled by, or
under common control with, such specified Person. For the purposes of this
definition,


 

















 


“control”
(including the terms “controlling”, “controlled by” and “under common control
with”) when used with respect to any specified Person means the possession,
direct or indirect, of the power to vote 20% or more of the voting securities
of such Person or to direct or cause the direction of the management and
policies of such Person whether through the ownership of voting securities, by
contract or otherwise. The Indenture Trustee may conclusively presume that a
Person is not an Affiliate of another Person unless an Authorized Officer of
the Indenture Trustee has actual knowledge to the contrary.


 


“Aggregate
Outstanding Principal Balance” means, as of any date of determination, the
sum of the Outstanding principal balances of each Note outstanding on such
date.


 


“Applicable
Procedures” has the meaning given to such term in subsection 4.02(1)(i).


 


“Authorized
Newspaper” means a newspaper of general circulation in the Borough of
Manhattan, The City of New York, printed in the English language and
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays.


 


“Authorized
Officer” means, (i) with respect to any Person, any person who is
authorized to act for such Person in matters relating to the Transaction
Documents and whose action is binding upon such Person, (ii) with respect
to the Issuer, any member, manager or officer who is authorized to act for the
Issuer, and (iii) with respect to the Indenture Trustee, the Chairman or
Vice President of the Board of Directors or Trustees, the Chairman or Vice
Chairman of the Executive or Standing Committee of the Board of Directors or
Trustees, the President, the Chairman of the Committee on Trust Matters, any
vice president, any assistant vice president, the Secretary, any assistant
secretary, the Treasurer, any assistant treasurer, the Cashier, any assistant
cashier, any trust officer, the Controller and any assistant controller or any
other officer of the Indenture Trustee customarily performing functions similar
to those performed by any of the above designated officers and also, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer’s knowledge of and familiarity with particular
subject.


 


“Beneficial
Owner” means, with respect to a Note, the Person who is the beneficial
owner of such Note, as reflected on the books of the Depository or on the books
of a Person maintaining an account with such Depository (directly or as an
indirect participant, in accordance with the rules of such Depository), as
the case may be.


 


“Business
Day” means any day other than (a) a Saturday or Sunday, or (b) a
day on which banking institutions in the cities of New York, New York and Salt
Lake City, Utah are authorized or obligated, by law or executive order, to be
closed.


 


“Class A-1
Note Interest Rate” means the rate of interest payable with respect to the
Class A-1 Notes, which shall be equal to 5.420% per annum.


 


“Class A-1
Note Extension Interest Rate” means the rate of interest which is the
greater of (i) the Class A-1 Note Interest Rate plus two hundred
(200) basis points (2.00%) and (ii) a rate per annum equal to the lesser of (A) LIBOR plus 255
basis points (2.55%) and (B) thirteen percent (13.00%).


 


2

















 


“Class A-1
Notes Account” has the meaning given to such term in Section 3.01.


 


“Closing
Date” means December 21, 2004.


 


“Code”
means the Internal Revenue Code of 1986, as amended, or any successor
legislation thereto.


 


“Contribution
Agreement” means the Contribution Agreement dated as of the date of this
Indenture, between the Member and the Issuer.


 


“Corporate
Trust Office” means in the case of the Indenture Trustee: Wells Fargo Bank
Northwest, N.A., 299 South Main Street, 12th Floor, Salt Lake City, Utah 84111,
Attention: Corporate Trust Services, or at such other address as the Indenture
Trustee may designate from time to time by notice to the Issuer, or the
principal corporate trust officer of any successor Indenture Trustee at the
address designated by such successor by notice to the Issuer.


 


“Default”
means any occurrence that is, or with notice or the lapse of time or both would
become, an Event of Default.


 


“Depository”
means The Depository Trust Company or its successors or assigns.


 


“Depository
Participant” means a Person for whom, from time to time, the Depository
effects book–entry transfers and pledges of securities deposited with the
Depository.


 


“Direct
Participant” means any broker–dealer, bank or other financial institution
for whom the nominee of the Depository holds an interest in any Note.


 


“DTC”
means The Depository Trust Company, and its successors.


 


“DTC
Custodian” means the Indenture Trustee as a custodian for DTC.


 


“Eligible
Deposit Account” means either a segregated account with a Qualified
Institution, or a segregated trust account with the corporate trust department
of a depository institution organized under the laws of the United States or
any one of the states thereof, including the District of
Columbia (or any domestic branch of a foreign bank), and acting as a trustee for
funds deposited in such account, so long as any of the securities of such
depository institution shall have a credit rating from in the case of Moody’s a
short–term credit rating of “P-1” and in the case of S&P a commercial paper
short–term debt rating of “A-1+” and a long–term unsecured debt rating of
“AA-”.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, or any successor legislation thereto and the regulations promulgated
and the rulings issued thereunder.


 


“Event
of Default” has the meaning given to such term in Section 5.01.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended or supplemented
from time to time.


 


3

















 


“Extended
Maturity Date” means January 29, 2020.


 


“FDIC”
shall mean the Federal Deposit Insurance Corporation and any successor thereto.


 


“Global
Notes” means the Notes sold within the United States to U.S. Persons,
initially issued to Qualified Institutional Buyers in the form of beneficial
interests in one or more Global Notes, deposited with the
Indenture Trustee as custodian for the Depository and registered in the name of
the Depository or its nominee, beneficial interests of which are reflected on
the books of the Depository or on the books of a Person maintaining any account
with such Depository (directly or as an indirect participant in accordance with
the rules of such Depository).


 


“Governmental
Authority” means, with respect to any Person, any nation or government, any
state or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any court or arbitrator having jurisdiction over such Person.


 


“Grant”
means to mortgage, pledge, sell, bargain, warrant, alienate, remise, release,
convey, assign, transfer, create, and grant a lien upon and a security interest
in and right of set off against, deposit, set over and confirm pursuant to the
Indenture. A Grant of Indenture Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of such collateral or other agreement or
instrument and all other moneys payable thereunder, to give and receive notices
and other communications, to make waivers or other agreements, to exercise all
rights and options, to bring proceedings in the name of the granting party or
otherwise, and generally to do and receive anything that the granting party is
or may be entitled to do or receive thereunder or with respect thereto.


 


“Guarantor”
means Wachovia Corporation, a North Carolina corporation.


 


“Guaranty”
means the Guaranty executed as of October 29, 2004, by Guarantor for the
benefit of Issuer, as successor-in-interest to OfficeMax Southern Company
(formerly known as Boise Southern Company) and OfficeMax Incorporated (formerly
known as Boise Cascade Corporation).


 


“Holder”
means, with respect to a Note, the Person in whose name such Note is registered
in the Note Register.


 


“Indenture
Collateral” has the meaning given to such term in the Granting Clause.


 


“Indenture
Trustee” has the meaning given to such term in the Preamble.


 


“Indirect
Participant” means any financial institution for whom any Direct
Participant holds an interest in any Note.


 


“Individual
Note” means any Note in permanent certificated form registered in the name
of a Holder other than the Depository or its nominee.


 


4

















 


“Indenture Trustee Fee”
shall have the meaning given to such term in Section 6.07.


 


“Independent” means, when
used with respect to any specified Person, the Person (a) is in fact
independent of the Issuer, any other obligor on the Notes, the Indenture
Trustee and any Affiliate of any of the foregoing Persons, (b) does not
have any direct financial interest or any material indirect financial interest
in the Issuer, any such other obligor, the Indenture Trustee or any Affiliate
of any of the foregoing Persons and (c) is not connected with the Issuer,
any such other obligor, the Indenture Trustee or any Affiliate of any of the
foregoing Persons as an officer, employee, trustee, partner, director or person
performing similar functions.


 


“Initial
Purchasers” means Wachovia Capital Markets, LLC and Lehman
Brothers Inc.


 


“Initial
Principal Balance” means $735,000,000.


 


“Installment
Notes” means, collectively, (i) the Installment Note in the principal
amount of $559,500,000 dated as of October 29, 2004, by Boise
Land & Timber, L.L.C. for the benefit of Issuer, as
successor-in-interest to Boise Cascade Corporation, and (ii) the
Installment Note in the principal amount of $258,000,000, dated as of
October 29, 2004, by Boise Land & Timber, L.L.C. for the benefit
of Issuer, as successor-in-interest to Boise Southern Company.


 


“Institutional
Accredited Investor” means any Person meeting the requirements of
Rule 501 (a) (1) – (3) or (7) of Regulation D under
the Securities Act.


 


“Issuer
Order” means a written order or request signed in the name of the Issuer by
any one of its Authorized Officers and delivered to the Indenture Trustee.


 


“Interest
Accrual Period” means the period commencing on a Payment Date and
ending on the day immediately preceding the next Payment Date (or, with respect
to the first Payment Date, the period commencing on the Closing Date and ending
on the day before the first Payment Date).


 


“Investment
Company Act” means the Investment Company Act of 1940, as
amended.


 


“Letter
of Representations” means the Letter of Representations, dated as of
the date of this Indenture, by and among the Issuer, the Indenture Trustee and
the Depository.


 


“LIBOR” means the rate
for deposits in the U.S. dollars having a maturity date of three
(3) months commencing on the first day of the applicable interest period
that appears on Telerate Page 3750 as of 11:00 a.m., London time, on
the date which is two (2) Business Days prior to the Scheduled Maturity
Date. If such rate ceases to be available on Telerate Page 3750, the
Indenture Trustee will request the principal London offices of four major banks
in the London interbank market (as selected by the Indenture Trustee) to
provide the Indenture Trustee with an offered quotation for deposits in U.S.
dollars for the period of three (3) months, commencing on the date which
is two (2) Business Days prior to the Scheduled Maturity Date, to prime
banks in the London interbank market at approximately 11:00 a.m., London
time, on such date and in a principal amount equal to not less than $1,000,000
that is representative for a single transaction in U.S. dollars in that market
at that time. If at least two quotations are provided, then LIBOR on such date
will be the arithmetic mean of those quotations (rounded upwards, if necessary,
to the


 


5

















 


nearest
one hundred-thousandth of a percentage point, with 5 one-millionths of a
percentage point rounded upwards). If fewer than two quotations are provided by
such reference banks, then LIBOR on such date will be the arithmetic mean
(rounded upwards, if necessary, to the nearest one hundred-thousandth of a
percentage point, with 5 one-millionths of a percentage point rounded upwards)
of the rates quoted in The City of New York on such date by three major banks
in The City of New York (as selected by the Indenture Trustee) for loans in
U.S. dollars to leading European banks, having a three-month maturity and in a
principal amount equal to not less than $1,000,000 that is representative for a
single transaction in U.S. dollars in that market at that time.


 


“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever, including, without limitation, any conditional sale or other title
retention agreement, and any financing lease having substantially the same
economic effect as any of the foregoing (including any UCC financing statement
or any similar instrument filed against a Person’s assets or properties).


 


“Limited
Liability Company Agreement” means the Limited Liability Company Agreement
of the Issuer, dated as of the date of this Indenture but effective as of
November 24, 2004, between the Member and managers of the Issuer, as such
agreement may be amended, modified, waived, supplemented or restated from time
to time.


 


“Majority
Holders” means the Holders evidencing more than 50% of the Aggregate
Outstanding Principal Balance of all of the Notes.


 


“Maturity
Date” means either (i) the Scheduled Maturity Date, or (ii) if
the term of the Notes is extended pursuant to Section 4.04, the
Extended Maturity Date.


 


“Member”
means OMX Timber Finance Holdings I, LLC, a Delaware limited liability company.


 


“Moody’s”
means Moody’s Investors Service or any successor thereto.


 


“Moody’s
Rating Condition” means, with respect to any action or series of related
actions or proposed transaction or series of proposed transactions, that
Moody’s shall have notified the Indenture Trustee in writing that such action
or series of related actions or the consummation of such proposed transaction
or series of related transactions will not result in a reduction or withdrawal
of the rating issued by Moody’s on the Closing Date with respect to any
outstanding class of Notes as a result of such action or series of related
actions or the consummation of such proposed transaction or series of related
transactions.


 


“Notes”
means collectively, the Class A-1 Secured Notes due 2019 issued pursuant
to this Indenture


 


“Note
Register” has the meaning given to such term in subsection 4.02(a).


 


“Note
Registrar” has the meaning given to such term in subsection 4.02(a).


 


6














 


“Officer’s
Certificate” means a certificate delivered to the Indenture Trustee signed
by a Regular Manager of the Issuer, as required by this Agreement or any other
Transaction Document.


 


“Opinion
of Counsel” means a written opinion of counsel, who may be outside counsel
or internal counsel, for the Issuer, from King & Spalding LLP,
Dechert LLP or other counsel reasonably acceptable to the Indenture
Trustee, as the case may be.


 


“Outstanding”
means as of the date of determination, all Notes theretofore executed,
authenticated and delivered under the Indenture except:


 


(i)            Notes in exchange
for or in lieu of which other Notes have been executed, authenticated and
delivered pursuant to the Indenture unless proof satisfactory to the Indenture
Trustee is presented that any such Notes are held by a holder in due course;
and


 


(ii)           Notes theretofore
canceled by the Note Registrar or delivered to the Indenture Trustee for
cancellation.


 


“Owner”
means each Holder of a Note.


 


“Participant”
means a Person that has an account with DTC.


 


“Payment
Date” means each April 30 and October 31 beginning April 30,
2005, through and including the Maturity Date.


 


“Payment
Direction Letters” means those letters dated as of the date of this
Indenture, from Issuer to the makers of each Installment Note directing that
payment under such Installment Notes be made directly to the Indenture Trustee.


 


“Paying
Agent” means, with respect to the Notes, any paying agent or co–paying
agent appointed pursuant to Section 3.03 of the Indenture, which
initially shall be the Indenture Trustee.


 


“Percentage
Interest” means, with respect to a Note, the fraction, expressed as a
percentage, the numerator of which is the denomination represented by such Note
and the denominator of which is the Initial Principal Balance.


 


“Permitted
Liens” means


 


(a)           with respect to any portion of the
Indenture Collateral, Liens in favor of the Indenture Trustee created pursuant
to this Indenture;


 


(b)           with respect to the interest of the
Issuer in the Indenture Collateral: (i) Liens arising by operation of law
in the ordinary course of business for sums not due or sums that are being
contested in good faith, (ii) Liens for state, municipal and other local
taxes if such taxes shall not at the time be due and payable or if the Issuer
shall currently be contesting the validity thereof in good faith by appropriate
proceedings, and (iii) Liens in favor of the Indenture Trustee created
pursuant to this Indenture; and


 


7

















 


(c)           with respect to any assets of the
Issuer, including the Indenture Collateral, Liens securing the Refinancing
Indebtedness, the proceeds of which are used to redeem fully the Notes under Section 4.04.


 


“Person”
means any individual, corporation, estate, partnership, business or statutory trust, limited
liability company, sole proprietorship, joint venture, association, joint stock
company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political
subdivision thereof or other entity.


 


“Plan” has the
meaning given to such term in subsection 4.02(v).


 


“Proceeding” means any suit
in equity, action at law or other judicial or administrative proceeding.


 


“Qualified
Institutional Buyer” has the meaning given to such term in Rule 144A under the Securities Act.


 


“Qualified
Institution” means (a) the corporate trust department of
the Indenture Trustee or the corporate trust department of Wachovia Bank,
National Association, or (b) a depository institution organized under the
laws of the United States or any one of the states thereof or the District of
Columbia (or any domestic branch of a foreign bank), (i)(A) that has
either (1) a long-term unsecured debt rating acceptable to the Rating
Agencies, which, in the case of S&P, shall be “AA-” and in the case of
Moody’s, shall be “Aa3,” or (2) a short–term unsecured debt rating or
certificate of deposit rating acceptable to the Rating Agencies, which, in the
case of S&P, shall be “A-1+” and in the case of Moody’s, shall be “P-1,” (B) the parent
corporation, if such parent corporation guarantees the obligations of the
depository institution, of which has either (1) a long–term unsecured debt
rating acceptable to the Rating Agencies, which, in the case of S&P, shall
be “AA-” and in the case of Moody’s, shall be “Aa3” or (2) a short—term
unsecured debt rating or certificate of deposit rating acceptable to the Rating
Agencies, which, in the case of S&P, shall be “A-1+” and in the case of
Moody’s, shall be “P-1,” or (C) otherwise satisfies the Rating Agency
Condition, and (ii) whose deposits are insured by the FDIC and satisfies
the Rating Agency Condition.


 


“Qualified
Purchaser” means a “qualified purchaser” within the meaning of
Section 3(c)(7) of the Investment Company Act.


 


“Rating
Agency” means each of S&P and Moody’s, so long as such Persons maintain a
rating on the Notes; and if any of S&P or Moody’s no longer maintains a
rating on the Notes, such other nationally recognized statistical rating
organization selected by the Indenture Trustee.


 


“Rating
Agency Condition” means, with respect to any action or series of
related actions or proposed transaction or series of related proposed
transactions, that each Rating Agency shall have notified the Indenture Trustee
in writing that such action or series of related actions or the consummation of
such proposed transaction or series of related transactions will not result in
a Ratings Effect.


 


“Ratings
Effect” means, with respect to any action or series of related
actions, a reduction or withdrawal of the then current rating issued by a
Rating Agency with respect to any Notes as a


 


8

















 


result
of such action or series of related actions or the consummation of such
proposed transaction or series of related transactions.


 


“Record
Date” means, for book–entry Notes, the calendar day immediately preceding
the applicable Payment Date, and for the Individual Notes, the last Business
Day of the immediately preceding calendar month.


 


“Redemption
Notice” has the meaning given to such term in subsection 4.04(b).


 


“Refinancing
Indebtedness” means indebtedness incurred by the Issuer the
proceeds of which are used to redeem the aggregate principal amount of the
Outstanding Notes, together with all accrued and unpaid interest thereon.


 


“Requirements
of Law” for any Person means the certificate of incorporation or articles of
association and by–laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or order or determination
of an arbitrator or Governmental Authority, in each case applicable to or
binding upon such Person or to which such Person is subject, whether Federal,
state or local (including, without limitation, usury laws).


 


“Rule 144A
Certification” means a letter substantially in the form attached
as Exhibit C–2.


 


“Satisfaction
Date” means the date which is one hundred eighty-one (181) days after the
date on which all obligations of the Issuer under this Indenture and the Notes
have been paid and/or satisfied in full (other than any ongoing indemnities
contained in this Indenture which by their terms survive the satisfaction of
all other monetary obligations under such Indenture and Notes).


 


“S&P” means Standard
and Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.
or any successor thereto.


 


“S&P
Rating Condition” means, with respect to any action or series of
related actions or proposed transaction or series of proposed transactions,
that S&P shall have notified the Indenture Trustee in writing that such
action or series of related actions or the consummation of such proposed
transaction or series of related transactions will not result in a reduction or
withdrawal of the then current rating issued by S&P with respect to any
outstanding class of Notes as a result of such action or series of related
actions or the consummation of such proposed transaction or series of related
transactions.


 


“Sale” has the
meaning given to such term in Section 5.15.


 


“Scheduled
Maturity Date” means October 31, 2019.


 


“Securities
Legend” “THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER
ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE. THE HOLDER HEREOF, BY
PURCHASING THIS NOTE, AGREES THAT THIS NOTE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE


 


9

















 


TRANSFERRED
ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER REQUIREMENTS OF LAWS
AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)
TO A U.S. PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A “QIB”) AND WHO IS
A QUALIFIED PURCHASER WITHIN THE MEANING OF SECTION 3(c)(7) UNDER THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED (A “QUALIFIED PURCHASER”),
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB WHO
IS ALSO A QUALIFIED PURCHASER, WHOM THE HOLDER HAS INFORMED THAT THE REOFFER,
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(2) IN CERTIFICATED FORM TO A U.S. PERSON WHO IS AN INSTITUTIONAL
“ACCREDITED INVESTOR” (WITHIN THE MEANING OF RULE 501 (a)(1)-(3) OR
(7) UNDER THE SECURITIES ACT) AND WHO IS ALSO A QUALIFIED PURCHASER,
PURCHASING FOR INVESTMENT AND NOT FOR DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, IN EACH CASE, SUBJECT TO (A) THE RECEIPT BY THE INDENTURE
TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE INDENTURE
AND (B) THE RECEIPT BY THE INDENTURE TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE
TO THE INDENTURE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER REQUIREMENTS OF LAWS OR IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND
SECURITIES AND BLUE SKY LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER
APPLICABLE JURISDICTION, OR (3) TO A U.S. PERSON PURSUANT TO ANOTHER
EXEMPTION AVAILABLE UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ANY
APPLICABLE STATE SECURITIES LAWS. THE PURCHASE OF THIS NOTE WILL BE DEEMED A
REPRESENTATION BY THE ACQUIRER THAT EITHER: (I) IT IS NOT, AND IS NOT
ACQUIRING OR HOLDING THIS NOTE, DIRECTLY OR INDIRECTLY, ON BEHALF OF OR WITH
ANY ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” WITHIN THE MEANING OF SECTION 3(3) OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
THAT IS SUBJECT TO TITLE I OF ERISA, A “PLAN” WITHIN THE MEANING OF AND SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”);
AN ENTITY THE UNDERLYING ASSETS OF WHICH ARE DEEMED TO INCLUDE ASSETS OF ANY
SUCH PLAN, OR A PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR NON-U.S.
LAW (“SIMILAR LAW”) THAT IS SUBSTANTIVELY SIMILAR TO THE PROVISIONS OF
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, OR (B) ITS
ACQUISITION AND HOLDING OF THIS NOTE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE OR A VIOLATION OF SIMILAR LAW.


 


“Telerate
Page 3750” means the display designated as “Page 3750” on
MoneyLine Telerate, or such other page as may replace the 3750
page on that service or any successor service or services that may be
nominated by the British Bankers’ Association for the purpose of displaying the
London interbank rates of major banks for U.S. dollars.


 


10

















 


“Transaction
Documents” means this Indenture, the Notes, the Contribution
Agreement, the Limited Liability Company Agreement, the Installment Notes, the
Guaranty, the Payment Direction Letters and any documents or agreements
executed in connection with the forgoing, as the forgoing documents and
agreements are amended, modified, restated, replaced, substituted, waived,
supplemented or extended from time to time.


 


“Transfer” has the
meaning given to such term in subsection 4.02(r).


 


“Transferee
Letter” means the letter set forth in Exhibit C-1.


 


“Trust
Indenture Act” or “TIA” means the Trust Indenture Act of
1939, as amended from time to time, as in effect on any relevant date.


 


“UCC” means the
Uniform Commercial Code, as amended from time to time, as in effect in any
specified jurisdiction.


 


“U.S.
Person” means a Person who is both (i) a “U.S. person” as defined in
Regulation S under the Securities Act and (ii) a “United States person”
under Section 7701(a)(30) of the Code.


 


“USA
PATRIOT Act” means the United States Uniting and Strengthening
America By Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, signed into law on and effective as of October 26,
2001, which, among other things, requires that financial institutions, a term
that includes banks, broker-dealers and investment companies, establish and
maintain compliance programs to guard against money laundering activities.


 


Section 1.02.        Rules of
Construction.


 


Unless
the context otherwise requires:


 


(i)            a term has the
meaning given to it;


 


(ii)           an accounting term
not otherwise defined has the meaning given to it in accordance with generally
accepted accounting principles;


 


(iii)          “or” is not exclusive;


 


(iv)          “including” means including
without limitation;


 


(v)           words in the
singular include the plural and words in the plural include the singular;


 


(vi)          any pronouns shall
be deemed to cover all genders; and


 


(vii)         any agreement, instrument or
statute defined or referred to herein or in any instrument or certificate
delivered in connection herewith means such agreement, instrument or statute as
from time to time amended, modified, waived or supplemented and includes (in
the case of agreements or instruments) references to all attachments thereto
and instruments incorporated therein; references to a Person are also to its
permitted successors and assigns.


 


11

















 


ARTICLE II          THE
NOTES


 


Section 2.01. Form.


 


The
Notes, together with the Indenture Trustee’s certificate of authentication,
shall be in substantially the form set forth as Exhibit A to this
Indenture with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
appropriate Authorized Officers executing such Notes, as evidenced by their
execution of the Notes. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the
Note.


 


The
Notes shall be typewritten, printed, lithographed or engraved or produced by
any combination of these methods (with or without steel engraved borders), all
as determined by the Authorized Officers executing such Notes, as evidenced by
their execution of such Notes.


 


The
terms of the Notes set forth in Exhibit A are part of
the terms of this Indenture. 


 


Section 2.02.   Execution, Authentication
and Delivery.


 


The
Notes shall be executed on behalf of the Issuer by any of its Authorized
Officers. The signature of any such Authorized Officer on the Notes may be
manual or facsimile.


 


A
Note bearing the manual or facsimile signature of an individual who was at any
time an Authorized Officer of the Issuer shall bind the Issuer, notwithstanding
that such individual has ceased to hold such office prior to the authentication
and delivery of such Note or did not hold such office at the date of such Note.


 


The
Indenture Trustee shall upon receipt of an Issuer Order authenticate and
deliver the Notes for original issue in an aggregate amount equal to the
Initial Principal Balance.


 


Each
Note shall be dated the date of its authentication. The Notes shall be issuable
as registered Notes in the minimum initial denominations of $500,000 and in
integral multiples of $1,000 in excess thereof; provided, however, that one Note
may be issued in a different denomination.


 


No
Note shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose, unless there appears on such Note a certificate of
authentication substantially in the form provided for herein executed by the
Indenture Trustee by the manual signature of one of its authorized signatories,
and such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder.


 


Section 2.03.   Opinions of Counsel.


 


On
the Closing Date, the Indenture Trustee shall have received: (i) an
Opinion of Counsel, with respect to securities law matters; (ii) an
Opinion of Counsel, with respect to certain U.S. federal income tax matters
relating to the Notes; and (iii) an Opinion of Counsel to


 


12

















 


the
Issuer, with respect to the due authorization, valid execution and delivery of
this Indenture and with respect to its binding effect on the Issuer.


 


ARTICLE III         COVENANTS


 


Section 3.01.   Collection of Payments on
Indenture Collateral; Class A-1 Notes Account.


 


The
Indenture Trustee shall establish and cause to be maintained an account owned
by the Indenture Trustee for the benefit of the Issuer for the
collection of payments from the Indenture Collateral (the “Class A-1 Notes Account”). Any amounts
on deposit in the Class A-1 Notes Account shall remain
uninvested. The Indenture Trustee shall ensure that the Class A-1 Notes Account
is established and maintained as an Eligible Deposit Account with a Qualified
Institution. If any institution with which any of the Class A-1 Notes
Account established pursuant to this Indenture is established ceases to be a
Qualified Institution, the Indenture Trustee shall within ten (10) Business
Days establish a replacement account at a Qualified Institution after notice of
such event. The Indenture Trustee shall make all payments of principal of and
interest on the Notes, subject to Section 3.03 and as provided in Section 3.05
herein from moneys on deposit in the Class A-1 Notes Account.


 


Section 3.02.   Maintenance of Office or
Agency.


 


The
Issuer will maintain with the Indenture Trustee an office or agency where,
subject to satisfaction of conditions set forth herein, Notes may be surrendered
for registration of transfer or exchange, and where notices and demands to or
upon the Issuer in respect of the Notes and this Indenture may be served. The
Issuer hereby initially appoints the Indenture Trustee to serve as its agent
for the foregoing purposes. The Issuer will
give prompt written notice to the Indenture Trustee of the location,
and of any change in the location, of any such office or agency. If at any time
the Issuer shall fail to maintain any such office or agency or shall fail to
furnish the Indenture Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Indenture Trustee, and the Issuer hereby appoints the Indenture Trustee as its
agent to receive all such surrenders, notices and demands.


 


Section 3.03.   Money for Payments To Be
Held in Trust; Paying Agent.


 


The
Issuer appoints the Indenture Trustee as Paying Agent for the payment of
principal and interest on the Notes. As provided in Section 3.01,
all payments of amounts due and payable with respect to any Notes that are to
be made from amounts withdrawn from the Class A-1 Notes Account pursuant
to Section 3.01 shall be made on behalf of the Issuer by the Paying
Agent, and no amounts so withdrawn from the Class A-1 Notes Account for
payments of Notes shall be paid over to the Issuer except as provided in this Section 3.03
and in Section 8.02.


 


The
Issuer may at any time and from time to time vary or terminate the appointment
of any such agent or appoint any additional paying agents for any or all of
such purposes; provided, that, no Paying Agent shall be appointed in a
jurisdiction that subjects payments on the Notes to withholding tax. The Issuer
shall give prompt written notice to the Indenture Trustee, the Rating Agencies
and the Holders of the appointment or termination of any such agent and of
the location and any change in the location of any such office or agency.


 


13

















 


The
Issuer will cause each Paying Agent other than the Indenture Trustee to execute
and deliver to the Indenture Trustee an instrument in which such Paying
Agent shall agree with the Indenture Trustee (and if the Indenture Trustee acts
as Paying Agent, it so agrees), subject to the provisions of this Section 3.03, that such
Paying Agent will:


 


(i)            hold all sums held
by it for the payment of amounts due with respect to the Notes in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;


 


(ii)           give the Indenture
Trustee notice of any default by the Issuer in the making of any payment
required to be made with respect to the Notes;


 


(iii)          at any time during
the continuance of any such default, upon the written request of the Indenture
Trustee, forthwith pay to the Indenture Trustee all sums so held in trust by
such Paying Agent;


 


(iv)          immediately resign
as Paying Agent and forthwith pay to the Indenture Trustee all sums held by it
in trust for the payment of Notes if at any time it ceases to meet the
standards required to be met by a Paying Agent at the time of its appointment;
and


 


(v)           comply with all
requirements of the Code with respect to the withholding from any payments made
by it on any Notes of any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection therewith.


 


Subject
to applicable laws with respect to escheat of funds, any money held by the Indenture
Trustee or any Paying Agent in trust for the payment of any amount due with
respect to any Note and remaining unclaimed for two (2) years after such
amount has become due and payable shall be discharged from such trust and be
paid to the Issuer on an Issuer Order; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however,
that the Indenture Trustee or such Paying Agent, before being required to make
any such repayment, shall at the expense and direction of the Issuer cause to
be published once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than thirty (30) days from the date of such publication, any unclaimed balance
of such money then remaining will be repaid to the Issuer. The Indenture
Trustee shall also adopt and employ, at the expense and direction of the
Issuer, any other reasonable means of notification of such repayment
(including, but not limited to, mailing notice of such repayment to Holders whose
Notes have been called but have not been surrendered for repurchase or whose
right to or interest in moneys due and payable but not claimed is determinable
from the records of the Indenture Trustee or of any Paying Agent, at the last
address of record for each such Holder).


 


14

















 


Section 3.04.   Existence; Separate Legal Existence.


 


Prior
to the Satisfaction Date:


 


(a)           The Issuer will keep in full effect
its existence, rights and franchises as a limited liability company
under the laws of the State of Delaware and will obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this
Indenture, the Notes, the other Transaction Documents, the Indenture Collateral
and each other instrument or agreement included in the Indenture Collateral.


 


(b)           The Issuer shall ensure that it is at
all times in compliance with Sections 7 and 9(i) of its Limited Liability
Company Agreement.


 


(c)           The Issuer shall conduct its affairs
strictly in accordance with its organizational documents and observe all
necessary, appropriate and customary statutory limited liability company
formalities.


 


Section 3.05.   Payment of Principal and Interest.


 


The
Issuer will duly and punctually pay the principal of and interest on the Notes
in accordance with the terms of such Notes and this Indenture. On each Payment
Date in accordance with Section 8.02, the Issuer
will cause to be distributed amounts on deposit in the Class A-1 Notes
Account for the benefit of the Holders of the Notes to pay all interest on and
principal of the Notes then due and payable. Amounts properly withheld under
the Code or any applicable state law by any Person from a payment to any Holder
of interest and/or principal shall be considered as having been paid by the
Issuer to such Holder for all purposes of this Indenture.


 


Section 3.06. Protection
of Indenture Collateral.


 


(a)           The Issuer intends the security
interest Granted pursuant to this Indenture in favor of the Indenture Trustee
on behalf of the Holders to be prior to all other liens in respect of the
Indenture Collateral, and the Issuer shall take all actions necessary to obtain
and maintain, for the benefit of the Indenture Trustee on behalf of the
Holders, a first lien on and a first priority, perfected security interest in
the Indenture Collateral. In connection therewith, the Issuer shall cause to be
delivered into the possession of the Indenture Trustee as pledgee hereunder,
indorsed in blank, any “instruments” (within the meaning of the UCC), not
constituting part of chattel paper, evidencing any part of the Indenture
Collateral. The Indenture Trustee acknowledges and agrees that it holds the
Indenture Collateral delivered to it pursuant to this Indenture for the benefit
of the Holders. The Indenture Trustee agrees to maintain continuous possession
of such Indenture Collateral as pledgee hereunder until this Indenture shall
have terminated in accordance with its terms or until the Indenture Trustee is
otherwise authorized to release such instrument from the Indenture Collateral.
The Issuer will from time to time prepare (or shall cause to be prepared),
execute and deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further assurance
and other instruments, and will take such other action necessary or advisable to:


 


15

















 


(i)            maintain or preserve
the lien and security interest (and the priority thereof) of this Indenture or
carry out more effectively the purposes hereof;


 


(ii)           perfect, publish
notice of or protect the validity of any Grant made by this Indenture;


 


(iii)          enforce any rights
of the Issuer under the Indenture Collateral to the extent commercially
reasonable; or


 


(iv)          preserve and defend title to
the Indenture Collateral and the rights of the Indenture Trustee and
the Holders in such Indenture Collateral against the claims of all other
Persons and parties.


 


Except
as otherwise provided in or permitted by this Indenture, the Indenture Trustee
shall not remove any portion of the Indenture Collateral that consists of money
or is evidenced by an instrument, certificate or other writing from the
jurisdiction in which it was held at the date of the most recent Opinion of
Counsel delivered pursuant to Section 3.07 unless the
Indenture Trustee shall have first received an Opinion of Counsel to the effect
that the lien and security interest created by this Indenture with respect to
such property will continue to be maintained after giving effect to such action
or actions.


 


The
Issuer designates the Indenture Trustee its agent and attorney–in–fact to
execute any financing statement, continuation statement or other instrument
required to be executed pursuant to this Section 3.06.


 


Section 3.07.   Opinions as to Indenture
Collateral.


 


On
or before the Closing Date, the Issuer shall furnish to the Indenture Trustee
an Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the delivery of Indenture and any other
requisite documents, and with respect to the execution and filing of any
financing statements and continuation statements, as are necessary to perfect
and make effective the lien and security interest of this Indenture and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and security interest
effective.


 


Section 3.08.   Furnishing of
Rule 144A Information.


 


The
Issuer will furnish, upon the written request of any Holder or of any owner of
a beneficial interest therein, such information as is specified in paragraph
(d)(4) of Rule 144A under the Securities Act (i) to such Holder
or beneficial owner, (ii) to a prospective purchaser of such Note or
interest therein who is a Qualified Institutional Buyer (and who is also a
Qualified Purchaser) designated by such Holder or beneficial owner, or (iii) to
the Indenture Trustee for delivery to such Holder, beneficial owner or
prospective purchaser, in order to permit compliance by such Holder or
beneficial owner with Rule 144A in connection with the resale of such Note
or beneficial interest therein by such Holder or beneficial owner in reliance
on Rule 144A unless, at the time of such request, the Issuer is
subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, or exempt from reporting pursuant to Rule 12g3-2(b) under the
Exchange Act.


 


16














 


Section 3.09. Performance of Obligations.


 


(a)                                  The Issuer will
punctually perform and observe all of its obligations and agreements contained
in this Indenture, the Transaction Documents and in the instruments and agreements
included in the Indenture Collateral.


 


(b)                                 The Issuer may
contract with other Persons to assist it in performing its duties under this
Indenture, the Transaction Documents and in the instruments and agreements
included in the Indenture Collateral, and any performance of such duties by a
Person identified to the Indenture Trustee in an Officer’s Certificate of the
Issuer shall be deemed to be action taken by the Issuer.


 


(c)                                  The Issuer will not
take any action or permit any action to be taken by others which would release
any Person from any of such Person’s covenants or obligations under any of the
documents relating to the Indenture Collateral, or which would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any of the documents relating to the
Indenture Collateral.


 


Section 3.10. Negative Covenants.


 


So long as any Notes are Outstanding, the Issuer shall not:


 


(i)                                     except
as expressly permitted by this Indenture or any other Transaction Document,
sell, transfer, exchange or otherwise dispose of the Indenture Collateral,
unless directed to do so by the Indenture Trustee;


 


(ii)                                  claim
any credit on, or make any deduction from the principal or interest payable in
respect of, the Notes (other than amounts properly withheld from such payments
under the Code or applicable state law) or assert any claim against any present
or former Holder by reason of the payment of the taxes levied or assessed upon
any part of the Indenture Collateral;


 


(iii)                               permit
the validity or effectiveness of this Indenture to be impaired, or permit the
lien Granted by this Indenture to be amended, hypothecated, subordinated,
terminated or discharged, or permit any Person to be released from any
covenants or obligations with respect to the Notes under this Indenture except
as may be expressly permitted hereby, permit any lien, charge, excise, claim,
security interest, mortgage or other encumbrance (other than the lien of this
Indenture or any other Transaction Document or any other Permitted Lien) to be
created on or extend to or otherwise arise upon or burden the Indenture
Collateral or any part thereof or any interest therein or the proceeds thereof
or permit the lien of this Indenture not to constitute a valid first priority
security interest in the Indenture Collateral;


 


(iv)                              to
the fullest extent permitted by the Delaware Limited Liability Company Act (6
Del. C. Section 18-101, et. seq.), dissolve or liquidate in whole or in
part;


 


17

















 


(v)                                 enter
into any agreement which does not contain non-petition and limited recourse
provisions substantially to the effect of Section 11.15 and will
not consent to any amendment or waiver of such provisions;


 


(vi)                              create
any subsidiaries;


 


(vii)                           modify
or amend any of Sections 7, 9(a), 9(b), 9(f)(iii), 9(g), 9(h), 9(i), 10, 11,
12, 13, 14, 15, 19, 20, 25 or 35 under the Limited Liability Company Agreement;
or


 


(viii)                        permit the
modification or amendment of any Transaction Document without delivering notice
of such modification or amendment to each Rating Agency then rating the Notes.


 


Section 3.11. Annual Statement as to
Compliance.


 


If so requested in writing by
the Indenture Trustee, the Majority Holders or a Rating Agency, the Issuer will
deliver to the Indenture Trustee and the Rating Agencies, within ninety (90)
days after the end of each calendar year (commencing with the calendar year
ending 2004), an Officer’s Certificate stating, as to the Person signing such
Officer’s Certificate, that to the best of such Person’s knowledge, based on
such review, the Issuer has complied with all conditions and covenants under
this Indenture throughout such year, or, if there has been such a default in
its compliance with any such condition or covenant, specifying each such
default known to such Person and the nature and status thereof.


 


Section 3.12. Recording of
Assignments.


 


The Issuer shall submit or cause to be submitted for recording any
assignments of the Indenture Collateral requested by the Indenture Trustee
necessary to accomplish the Grant of the security interest of this Indenture.


 


Section 3.13. Investment Company Act.


 


Neither the Issuer nor the Indenture Trustee shall take any action that
would cause the Issuer to be required to register as an “investment company”
under the Investment Company Act.


 


Section 3.14. Issuer
May Consolidate, etc., only on Certain Terms.


 


(a)                                  The
Issuer shall not consolidate or merge with or into any other Person.


 


(b)                                 Except
as otherwise permitted under this Indenture or under the Transaction Documents,
the Issuer shall not convey or transfer all or substantially all of its
properties or assets, including those included in the Indenture Collateral, to
any Person.


 


Section 3.15. No Other Business.


 


Prior to the Satisfaction Date, the Issuer shall not engage in any
business other than financing,
purchasing, owning, selling, managing and enforcing the Indenture Collateral in
the manner contemplated by this Indenture and the Transaction Documents
and issuing the Notes and all activities incidental thereto.


 


18

















 


Section 3.16. No Borrowing.


 


Until such time as the Notes have been fully redeemed and all other
amounts due and payable under this Indenture have been indefeasibly paid and
satisfied in full (which redemption may occur contemporaneously with the
incurrence or issuance of Refinancing Indebtedness by the Issuer), the Issuer
shall not issue, incur, assume, guarantee or otherwise become liable, directly
or indirectly, for any indebtedness except for the Notes.


 


Section 3.17. Use of Initial Proceeds.


 


The proceeds from the initial sale of the Notes shall be used
exclusively to pay the transactional expenses of the Issuer, and, after paying
such expenses, the balance will be paid to the Member as a return on capital.


 


Section 3.18. Guarantees, Loans, Advances and Other
Liabilities.


 


Except as contemplated by this Indenture or the other Transaction
Documents, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another’s payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any
stock, obligations, assets or securities of, or any other interest in, or make
any capital contribution to, any other Person.


 


Section 3.19. Capital Expenditures.


 


The Issuer shall not make any expenditure for capital assets. 


 


Section 3.20. Representations and Warranties of the
Issuer. 


 


The Issuer represents and warrants as follows:


 


(a)                                  Power
and Authority. It has full power, authority and legal right to execute,
deliver and perform its obligations as Issuer under this Indenture and the
Notes (the foregoing documents, the “Issuer
Documents”) and under each of the other Transaction Documents to
which the Issuer is a party.


 


(b)                                 Due
Authorization and Binding Obligation. The execution and delivery of the
Issuer Documents and the other Transaction Documents to which the Issuer is a
party, and the consummation of the transactions provided for therein have been
duly authorized by all  necessary action
on its part. Each of the Issuer Documents and the other Transaction Documents
to which the Issuer is a party constitutes the legal, valid and binding
obligation of the Issuer and is enforceable in accordance with its terms,
except as enforcement of such terms may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors’ rights generally and by
the availability of equitable remedies.


 


(c)                                  No
Conflict. The execution and delivery of the Issuer Documents and the other
Transaction Documents to which the Issuer is a party, the performance of the
transactions contemplated thereby and the fulfillment of the terms thereof will
not conflict with, result in any


 


19

















 


breach
of any of the materials terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which the Issuer is
a party or by which it or any of its property is bound.


 


(d)                                 No Violation. The execution and delivery of the Issuer
Documents and the other Transaction Documents to which the Issuer is a party,
the performance of the transactions contemplated thereby and the fulfillment of
the terms thereof will not conflict with or violate, in any material respect,
any Requirements of Law applicable to the Issuer.


 


(e)                                  All Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or any Governmental Authority required in
connection with the execution and delivery of the Issuer Documents and the
other Transaction Documents to which the Issuer is a party, the performance of
the transactions contemplated thereby and the fulfillment of the terms thereof
have been obtained.


 


(f)                                    No Proceedings. No litigation or administrative proceeding
of or before any court, tribunal or governmental body is currently pending, or
to the knowledge of the Issuer, threatened, against the Issuer or any of its
respective properties or with respect to the Issuer Documents or any other
Transaction Document to which the Issuer is a party that, if adversely
determined, would have a material adverse effect on the business, properties,
assets or condition (financial or otherwise) of the Issuer or the transactions
contemplated by the Issuer Documents or any of the other Transaction Documents
to which the Issuer is a party.


 


(g)                                 Organization and Good Standing. The Issuer is a limited liability company
duly organized, validly existing and in good standing under the laws of
Delaware and has the requisite power to own its assets and to transact the
business in which it is currently engaged, and had at all relevant times, and
now has, all necessary power, authority and legal right to acquire, own and
pledge the Indenture Collateral.


 


(h)                                 Investment Company Act. The Issuer is not an “investment company”
within the meaning of the Investment Company Act.


 


(i)                                     Location. The Issuer is located (within the meaning of Article 9 of the
UCC) in Delaware. The Issuer agrees that it will not change its location
(within the meaning of Article 9 of the UCC) without at least thirty (30)
days prior written notice to the Indenture Trustee and the Rating Agencies.


 


(j)                                     Security Interest in Collateral.


 


(i)                                     This Indenture creates a valid, continuing
and enforceable security interest (as defined in the applicable UCC) in the
Indenture Collateral in favor of the Indenture Trustee, which security interest
is prior to all other Liens (except for Permitted Liens), and is enforceable as
such against creditors of and purchasers from the Issuer;


 


(ii)                                  the Installment Notes constitute
“instruments” and the Guaranty constitutes a “supporting obligation” within the
meaning of the applicable UCC;


 


20

















 


(iii)                               the
Issuer owns and has good and marketable title to such Indenture Collateral free
and clear of any Lien (other than Permitted Liens), claim or encumbrance of any
Person;


 


(iv)                              the
Issuer has caused or will have caused, within ten (10) days, the filing of
all appropriate financing statements in the proper filing office in the
appropriate jurisdictions under Requirements of Law in order to perfect the
security interest in such Indenture Collateral granted to the Indenture Trustee
under this Indenture;


 


(v)                                 other
than the security interest granted by the Issuer pursuant to this Indenture,
the Issuer has not pledged, assigned, sold, granted a security interest in or
otherwise conveyed any of such Indenture Collateral. The Issuer has not
authorized the filing of and is not aware of any financing statements against
the Issuer that include a description of collateral covering such Indenture
Collateral other than any financing statement relating to the security interest
granted by the Issuer under this Indenture. The Issuer is not aware of the
filing of any judgment or tax Lien filings against the Issuer;


 


(vi)                              all
original executed copies of each underlying document that constitute or
evidence the Indenture Collateral have been delivered to and to the knowledge
of the Issuer are in the possession of the Indenture Trustee;


 


(vii)                           the
Issuer has received a written acknowledgment from the Indenture Trustee that
the Indenture Trustee or its bailee is holding the underlying documents that
constitute or evidence the Indenture Collateral solely on behalf of and for the
benefit of the Holders; and


 


(viii)                        none of
the underlying documents that constitute or evidence the Indenture Collateral
has any marks or notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than the Issuer and the Indenture
Trustee.


 


Section 3.21. Restricted Payments.


 


Except as permitted by Section 8.02, the Issuer shall not,
directly or indirectly, (i) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, to any owner of a beneficial interest in the Issuer or
otherwise with respect to any ownership or equity interest or security in or of
the Issuer, (ii) redeem, purchase, retire or otherwise acquire for value
any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose. The Issuer will not,
directly or indirectly, make payments to or distributions from the Class A-1
Notes Account except in accordance with this Indenture and the Transaction
Documents.


 


Section 3.22. Notice of Events of Default.


 


The Issuer shall give the Indenture Trustee and the Rating Agencies
prompt written notice of each Event of Default hereunder and of any event of
default of any Transaction Document and of any other amendment or waiver of any
Transaction Document, such notice to be given in accordance with Section 10.04.


 


21

















 


Section 3.23. Further Instruments and
Acts.


 


Upon request of the Indenture Trustee, the Issuer will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.


 


ARTICLE
IV                                                  THE
NOTES; SATISFACTION AND DISCHARGE OF INDENTURE


 


Section 4.01. The Notes.


 


(a)                                  Certain
of the Notes shall be registered initially in the name of Cede & Co.
Beneficial Owners will hold interests in such Notes through the book–entry
facilities of the Depository in minimum denominations of $500,000 and integral
multiples of $1,000 in excess thereof. Subject to subsections 4.02(b), (p),
(q) and (r), the Notes shall be issued in such names and
denominations as may be set forth on an Issuer Order delivered to the Indenture
Trustee.


 


(b)                                 The
Notes shall, on original issue, be executed on behalf of the Issuer by an
Authorized Officer of the Issuer, authenticated by the Note Registrar and
delivered by the Indenture Trustee to or upon the order of the Issuer.


 


(c)                                  The
Notes may be held only by U.S. Persons. 


 


Section 4.02. Registration of
Transfer and Exchange of Notes.


 


(a)                                  The
Indenture Trustee shall cause to be kept a Note Register (the “Note Register”)
in which, subject to such reasonable regulations as it may prescribe, the
Issuer shall provide for the registration of Notes and the registration of
transfers and exchanges of Notes as herein provided. The Indenture Trustee
shall be “Note Registrar” for the purpose of registering Notes and transfers of
Notes as herein provided. The Note Register shall contain the name, remittance
instructions, the series and the number in the series.


 


(b)                                 The
Notes shall be issued in minimum denominations of $500,000 initial principal
amount and integral multiples of $1,000 in excess thereof, except that one Note
may be in a different denomination so that the sum of the denominations of all
outstanding Notes shall equal the Initial Principal Balance. On the Closing
Date, the Indenture Trustee will execute and authenticate one or more
(i) Global Notes and/or (ii) Individual Notes all in an aggregate
principal amount that shall equal the Initial Principal Balance.


 


(c)                                  The
Global Notes shall be delivered by the Issuer to the Depository or, pursuant to
the Depository’s instructions, shall be delivered by the Issuer on behalf of
the Depository to and deposited with the DTC Custodian, and in each case shall
be registered in the name of Cede & Co. and shall bear a legend
substantially to the following effect:


 


“Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation (“DTC”), to the Note
Registrar or its agent for registration of transfer, exchange or payment, and
any Note issued is registered in


 


22

















 


the
name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede &
Co. or to such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.”


 


The
Global Notes may be deposited with such other Depository as the Issuer may from
time to time designate, and shall bear such legend as may be appropriate; provided,
that, such successor Depository maintains a book–entry system that
qualifies to be treated as “registered form” under Section 163(f)(3) of
the Code.


 


The
Issuer and the Indenture Trustee are hereby authorized to execute and deliver a
Letter of Representations with the Depository relating to the Notes.


 


(d)                                 With respect to Notes registered in the Note
Register in the name of Cede & Co., as nominee of the Depository, the
Issuer and the Indenture Trustee shall have no responsibility or obligation to
Direct or Indirect Participants or Beneficial Owners for which the Depository
holds Notes from time to time as a Depository. Without limiting the immediately
preceding sentence, the Issuer and the Indenture Trustee shall have no
responsibility or obligation with respect to (a) the accuracy of the
records of the Depository, Cede & Co., or any Direct or Indirect
Participant with respect to the ownership interest in the Notes, (b) the
delivery to any Direct or Indirect Participant or any other Person, other than
a registered Holder of a Note, (c) the payment to any Direct or Indirect
Participant or any other Person, other than a registered Holder of a Note as
shown in the Note Register, of any amount with respect to any distribution of
principal or interest on the Notes or (d) the making of book–entry
transfers among Participants of the Depository with respect to Notes registered
in the Note Register in the name of the nominee of the Depository. No Person
other than a registered Holder of a Note as shown in the Note Register shall
receive a Note evidencing such Note.


 


(e)                                  Upon delivery by the Depository to the
Indenture Trustee of written notice to the effect that the Depository has
determined to substitute a new nominee in place of Cede & Co., and
subject to the provisions hereof with respect to the payment of distributions
by the mailing of checks or drafts to the registered Holders of Notes appearing
as registered Owners in the Note Register on a Record Date, the name
“Cede & Co.” in this Indenture shall refer to such new nominee of the
Depository.


 


(f)                                    In the event that the Depository advises the
Indenture Trustee in writing that the Depository is no longer willing or able
to discharge properly its responsibilities as nominee and depository with
respect to the Global Notes and the Indenture Trustee is unable to locate a
qualified successor, the Global Notes shall no longer be restricted to being
registered in the Note Register in the name of Cede & Co. (or a
successor nominee) as nominee of the Depository. At that time, the Indenture
Trustee may determine that the Global Notes shall be registered in the name of
and deposited with a successor depository operating a global book–entry system,
as may be acceptable to the Indenture Trustee, or such depository’s agent or
designee but, if the Indenture Trustee does not select such alternative global
book–entry system, then upon surrender to the Note Registrar of the Global
Notes by the Depository, accompanied by the registration


 


23

















 


instructions
from the Depository for registration, the Indenture Trustee authenticate
Individual Notes. The Indenture Trustee shall not be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Individual
Notes, the Indenture Trustee, the
Note Registrar, any Paying Agent and the Issuer shall recognize the
Holders of the Individual Notes as Holders hereunder.


 


(g)                                 Notwithstanding any
other provision of this Agreement to the contrary, so long as any Global Notes are registered in the name of
Cede & Co., as nominee of the Depository, all distributions of
principal and interest on such Global Notes and all notices with respect to
such Global Notes shall be made and given, respectively, in the manner provided
in the Letter of Representations.


 


(h)                                 Subject to the
preceding paragraphs, upon surrender for registration of transfer of any Note
at the office of the Note Registrar and, upon satisfaction of the conditions
set forth below, the Issuer shall execute in the name of the designated
transferee or transferees, a new Note or Notes of the same Percentage Interest
and dated the date of authentication by the Indenture Trustee. The Note
Registrar shall notify the Indenture Trustee of any such transfer.


 


(i)                                     At the option of a
Holder, the Notes held by such Holder may be exchanged for other Notes in
authorized denominations, upon surrender of the Notes to be exchanged at such
office. Whenever any Notes are so surrendered for exchange, the Issuer shall
execute the Notes which such Holder making the exchange is entitled to receive.
Every Note presented or surrendered for transfer or exchange shall be
accompanied by wiring instructions, if applicable, in the form of Exhibit B.
The preceding provisions of this section notwithstanding, the Issuer shall not
be required to make and the Note Registrar shall not register transfers or
exchanges of Notes called for repurchase.


 


(j)                                     No service charge
shall be made for any transfer or exchange of Notes, but prior to transfer the
Note Registrar may require payment by the transferor of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Notes.


 


All Notes surrendered for payment, transfer
and exchange or repurchase shall be marked canceled by the Note Registrar and
retained for one year and destroyed thereafter.


 


(k)                                  By acceptance of an
Individual Note, whether upon original issuance or subsequent transfer, each
Holder of such a Note acknowledges the restrictions on the transfer of such
Note set forth in the Securities Legend and agrees that it will transfer such a
Note only as provided herein. In addition to the provisions of subsection
4.02(m) and (n) the following restrictions shall apply
with respect to the transfer and registration of transfer of an Individual Note
to a transferee that takes delivery in the form of an Individual Note:


 


(i)                                     The
Note Registrar shall register the transfer of an Individual Note if the
requested transfer is being made to a transferee who has provided the Note
Registrar with a Rule 144A Certification; or


 


(ii)                                  The
Note Registrar shall register the transfer of any Individual Note if (x) the transferor has advised
the Note Registrar in writing that the Note is being


 


24

















 


transferred to a U.S. Person that is both an Institutional Accredited
Investor and a Qualified Purchaser; and (y) prior to the transfer the
transferee furnishes to the Note Registrar a Transferee Letter; provided,
that, if based upon an Opinion of Counsel to the effect that the
delivery of (x) and (y) above are not sufficient to confirm that the
proposed transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
and other applicable laws, the Note Registrar may as a condition of the
registration of any such transfer require the transferor to furnish other
certifications, legal opinions or other information prior to registering the
transfer of an Individual Note.


 


(1)                                  Subject to subsection
4.02(n), so long as a Global Note remains outstanding and is held by or on
behalf of the Depository, transfers of beneficial interests in the Global Note,
or transfers by Holders of Individual Notes to transferees that take delivery
in the form of beneficial interests in the Global Note, may be made only in
accordance with the rules of the Depository.


 


(m)                               Transfers of
Interests in Global Notes to Individual Notes. Any and all transfers from a
Global Note to a transferee wishing to take delivery in the form of an
Individual Note will require the transferee to take delivery subject to the
restrictions on the transfer of such Individual Note described on the face of
such Note, and such transferee agrees that it will transfer such Individual
Note only as provided therein and herein. No such transfer shall be made and
the Note Registrar shall not register any such transfer unless such transfer is
made in accordance with this subsection 4.02(m).


 


(i)                                     Transfers
of a beneficial interest in a Global Note to a U.S. Person who is both an
Institutional Accredited Investor and a Qualified Purchaser will require
delivery of such Note to the transferee in the form of an Individual Note and
the Note Registrar shall register such transfer only if prior to the transfer
such transferee furnishes to the Note Registrar (1) a Transferee Letter to
the effect that the transfer is being made to U.S. Person who is both an
Institutional Accredited Investor and a Qualified Purchaser in accordance with
an applicable exemption under the Securities Act, and (2) an Opinion of
Counsel acceptable to the Indenture Trustee that such transfer is in compliance
with the Securities Act.


 


(ii)                                  Transfers
of a beneficial interest in a Global Note to a U.S. Person who is both a
Qualified Institutional Buyer and a Qualified Purchaser wishing to take
delivery in the form of an Individual Note will be registered by the Note
Registrar only if the Note Registrar is provided with a Rule 144A
Certification.


 


(n)                                 Transfers of
Individual Notes to a Global Note. If a Holder of an Individual Note wishes
at any time to transfer such Note to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Global Note, such transfer
may be effected only in accordance with the Applicable Procedures, and this subsection
4.02(n). Upon receipt by the Note Registrar at the Corporate Trust Office
of (1) the Individual Note to be transferred with an assignment and
transfer, (2) written instructions given in accordance with the Applicable
Procedures from a Depository Participant directing the Note Registrar to credit
or cause to be credited to another specified Depository Participant’s account a
beneficial interest in such Global Note in an amount equal to the denomination
of the Individual Note to be so transferred, (3) a written order given in
accordance with the Applicable Procedures containing information regarding the
account of the


 


25














 


Depository
Participant to be credited with such beneficial interest, and (4) a
Transferee Letter from the transferee of such interest to the effect
that such transferee is a U.S. Person who is both a Qualified Institutional
Buyer and a Qualified Purchaser, the Note Registrar shall cancel such Individual Note, execute and deliver a new
Individual Note for the denomination of the Individual Note not so
transferred, registered in the name of the Holder, and the Note Registrar shall instruct the Depository to increase the
denomination of the Global Note by the denomination of the Individual
Note to be so transferred, and to credit or cause to be credited to the account
of the Person specified in such instructions a corresponding denomination of
the Global Note.


 


It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not both a U.S. Person and a
Qualified Institutional Buyer take delivery in the form of a beneficial
interest in a Global Note.


 


(o)                                 An
exchange of a beneficial interest in a Global Note for an Individual Note or
Notes, an exchange of an Individual Note or Notes for a beneficial interest in
a Global Note and an exchange of an
Individual Note or Notes for another Individual Note or Notes (in each case,
whether or not such exchange is made in anticipation of subsequent transfer)
may be made only in accordance with this Section 4.02 and in accordance with the rules of
the Depository and Applicable Procedures.


 


(p)                                 (i)                                     Upon
acceptance for exchange or transfer of an Individual Note for a beneficial
interest in the Global Note as provided herein, the Note Registrar shall cancel
such Individual Note and shall (or shall request the Depository to) endorse on
the schedule affixed to the applicable Global Note (or on a continuation of
such schedule affixed to the Global Note and made a part thereof) an
appropriate notation evidencing the date of such exchange or transfer and an
increase in the Note balance of the Global Note equal to the Note balance of
such Individual Note exchanged or transferred therefor.


 


(ii)                                  Upon acceptance for
exchange or transfer of a beneficial interest in the Global Note for an
Individual Note as provided herein, the Note Registrar shall (or shall request
the Depository to) endorse on the schedule affixed to the Global Note (or on a
continuation of such schedule affixed to the Global Note and made a part
thereof) an appropriate notation evidencing the date of such exchange or
transfer and a decrease in the Note balance of the Global Note equal to the
Note balance of such Individual Note issued in exchange therefor or upon
transfer thereof.


 


(q)                                 The
Securities Legend shall be placed on any Individual Note issued in exchange for
or upon transfer of another Individual Note or of a beneficial interest in the
Global Note.


 


(r)                                    Subject
to the restrictions on transfer and exchange set forth in this Section 4.02, the Holder of any Individual Note
may transfer or exchange the same in whole or in part (in an initial Note
balance equal to the minimum authorized denomination of $500,000 or any
integral multiple of $1,000 in excess thereof) by surrendering such Note at the
Corporate Trust Office, or at the office of any transfer agent, together with
an executed instrument of assignment and transfer satisfactory in form and
substance to the Note Registrar in the case of transfer and a written request
for exchange in the case of exchange. The Holder of a beneficial interest in a
Global Note may, subject to the rules and procedures of the Depository,
cause the Depository (or


 


26

















 


its
nominee) to notify the Note Registrar in writing of a request for transfer or
exchange of such beneficial interest for an Individual Note or Notes.
Following a proper request for transfer or exchange, the Note Registrar shall,
within five (5) Business Days of such request made at such Corporate Trust Office, cause the Indenture
Trustee to authenticate and the Note Registrar to deliver at such
Corporate Trust Office, to the transferee (in the case of transfer) or Holder
(in the case of exchange) or send by first class mail at the risk of the
transferee (in the case of transfer) or Holder (in the case of exchange) to
such address as the transferee or Holder, as applicable, may request, an
Individual Note or Notes, as the case may require, for a like aggregate Percentage Interest and in such authorized
denomination or denominations as may be requested. The presentation for
transfer or exchange of any Individual Note shall not be valid unless made at
the Corporate Trust Office by the registered Holder in person, or by a duly
authorized attorney–in–fact.


 


(s)                                  No
transfer of any Note shall be made unless such transfer is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with the Securities Act and laws. No
transfer of any Note shall be made if such transfer would require the Issuer to
register as an “investment company” under the Investment Company Act. In the
event of any such transfer, unless such transfer is made in reliance upon
Rule 144A under the Securities Act, the Indenture Trustee may require a
written Opinion of Counsel acceptable to and in form and substance reasonably
satisfactory to the Indenture Trustee that such transfer may be made pursuant
to an exemption, describing the applicable exemption and the basis therefor,
from the Securities Act and laws or is being made pursuant to said Act and
laws, which Opinion of Counsel shall not be an expense of the Indenture Trustee
or the Issuer. The Holder of a Note desiring to effect such transfer shall, and
by accepting a Note and the benefits of this Indenture does hereby agree to,
indemnify the Indenture Trustee, the Issuer and the Initial Purchasers against
any liability that may result if the transfer is not so exempt or is not made
in accordance with such federal and state laws. None of the Issuer, the
Indenture Trustee or the Initial Purchasers intends or is obligated to register
or qualify any Note under the Securities Act or any state securities laws.


 


Section 4.03. Mutilated, Destroyed, Lost or
Stolen Notes.


 


Subject to UCC Section 8–405, if
(i) any mutilated Note is surrendered to the Indenture Trustee, or the
Indenture Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Note, and (ii) there is delivered to the Indenture
Trustee such security or indemnity as may be required by it to hold the Issuer
and the Indenture Trustee harmless, then, in the absence of notice to the
Issuer, the Note Registrar or the Indenture Trustee that such Note has been
acquired by a protected purchaser, the Issuer shall execute, and upon its
request the Indenture Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement
Note; provided, however, that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become or
within seven (7) days shall be due and payable, or shall have been called
for repurchase, instead of issuing a replacement Note, the Issuer may pay such
destroyed, lost or stolen Note when so due or payable without surrender
thereof. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a protected purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer
and the Indenture Trustee shall be entitled to recover such


 


27

















 


replacement Note (or such payment) from the Person to whom it was
delivered or any Person taking such replacement Note from such Person to whom
such replacement Note was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuer or the Indenture Trustee in connection therewith.


 


Upon the issuance of any replacement Note under this Section 4.03,
the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.


 


Every replacement Note issued pursuant to this Section 4.03
in replacement of any mutilated, destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of the Issuer, whether
or not the mutilated, destroyed, lost or stolen Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.


 


The provisions of this Section 4.03 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.


 


Section 4.04. Payment of Principal and Interest;
Extension of Maturity Date;  Defaulted
Interest.


 


(a)                                  The
Notes shall accrue interest during each Interest Accrual Period on the basis of
twelve 30-day months in a 360-day year. Any interest or principal, if any,
payable on any Note which is paid or duly provided for by the Issuer on the
applicable Payment Date shall be paid to the Person in whose name such Note is
registered on the Record Date, by wire transfer or, if no account information
is provided, by check mailed first–class, postage prepaid, to such Person’s
address as it appears on the Note Register on such Record Date, except that,
unless Global Notes have been issued pursuant to Section 4.02, with
respect to Notes registered on the Record Date in the name of the nominee of the
Depository (initially, such nominee to be Cede & Co.), payment will be
made by wire transfer in immediately available funds to the account designated
by such Person and except for the payment of principal payable with respect to
such Note on the Maturity Date. The funds represented by any such checks
returned undelivered shall be held in accordance with Section 3.03.


 


(b)                                 The
principal balance of each Outstanding Note shall be due and payable, together
with all accrued and unpaid interest thereon, on the Scheduled Maturity Date.
It is anticipated that the Issuer will redeem fully the Notes, together with
all accrued and unpaid interest thereon, on the Scheduled Maturity Date. The
Issuer shall deliver an irrevocable notice in the form attached as Exhibit D
(a “Redemption Notice”) to the Indenture Trustee of such intent to
redeem at any time on or after September 1, 2019, but prior to October 1,
2019.


 


(c)                                  If
on October 1, 2019, the Issuer has not delivered to the Indenture Trustee
a Redemption Notice, the Indenture Trustee will provide written notice to each
Holder that (A) no such Redemption Notice has been received and
(B) the Indenture Trustee will be obligated to


 


28

















 


extend
the maturity of the Notes to the Extended Maturity Date unless instructed, on
or before October 21, 2019, by the Majority Holders not to extend such
maturity.


 


(d)                                 If on October 1, 2019, the Issuer has
delivered to the Indenture Trustee a Redemption Notice, the Indenture
Trustee will provide written notice to each Holder that (A) such Redemption Notice has been received and (B) that, in
the event the Issuer fails to so redeem the Notes on the Scheduled
Maturity Date, the Indenture Trustee will be obligated to extend the maturity of the Notes to the Extended
Maturity Date unless instructed, on or before October 21, 2019, by
the Majority Holders not to extend such maturity.


 


(e)                                  If
(i) in connection with the provisions of Section 4.04(c), the
Indenture Trustee does not receive instructions from the Majority Holders not
to extend by October 21, 2019, or (ii) in connection with the
provisions of Section 4.04(d), the Issuer fails to so redeem the
Notes on the Scheduled Maturity Date and the Indenture Trustee does not receive
by October 21, 2019, instruction from the Majority Holders not to extend
the term of the Notes, then in each case the term of the Notes shall be
extended to the Extended Maturity Date. Upon such Extended Maturity Date, the
Indenture Trustee shall apply the proceeds from the Indenture Collateral
pursuant to Section 8.02(d). If the Indenture Trustee does receive
instructions from the Majority Holders not to extend, then the term of the
Notes shall not be extended, and the Indenture Trustee shall exercise remedies
available pursuant to Article V.


 


(f)                                    If
an extension of the Maturity Date is made, in consideration of such extension,
the Class A-1 Note Interest Rate shall be increased (for the period
beginning on the Scheduled Maturity Date and extending to the Extended Maturity
Date) to the Class A-1 Note Extension Interest Rate.


 


(g)                                 Notwithstanding
the foregoing, the entire unpaid principal balance of the Notes shall be due
and payable, if not previously paid, on the date on which an Event of Default
shall have occurred and be continuing, if the Indenture Trustee with the
consent of the Majority Holders have declared the Notes to be immediately due
and payable in the manner provided in Section 5.02. All principal
payments among the Notes shall be made pro
rata to the Holders. The Indenture Trustee shall notify the Person
in whose name a Note is registered at the close of business on the Record Date
preceding the Payment Date on which the Issuer expects that the final
installment of principal of and interest
on such Note will be paid. Such notice shall be mailed or transmitted by
facsimile prior to such final Payment Date and shall specify that such final
installment will be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and surrendered
for payment of such installment. Notices in connection with repurchase of Notes
shall be mailed to Holders as provided in Section 10.02.


 


Section 4.05. Tax Treatment.


 


The Issuer has entered into this Indenture, and the Notes will be
issued, with the intention that, for federal, state and local income, business
and franchise tax purposes, (i) the Notes will qualify as indebtedness
secured by the Indenture Collateral and (ii) the Issuer shall not be
treated as an association, taxable mortgage pool or publicly traded partnership
taxable as a corporation. The Issuer, by entering into this Indenture, and each Holder, by the
acceptance of any such Note (and each Beneficial Owner of a Note, by its
acceptance of an interest in the applicable Note),


 


29

















 


agree
to treat such Notes for federal, state and local income, business and franchise
tax purposes as indebtedness. Each Holder of such Note agrees that it will
cause any beneficial owner of such Note acquiring an interest in a Note through
it to comply with this Indenture as to treatment of indebtedness under
applicable tax law, as described in this Section 4.05. The parties
hereto agree that they shall not cause or permit the making, as applicable, of any election
under Treasury Regulation
Section 301.7701–3 or any corresponding provision of applicable state law,
whereby the Issuer or any portion thereof would be treated as a corporation for
federal income tax purposes and, except as required by law or the terms of this
Indenture, shall not file tax returns or obtain any federal employer
identification number for the Issuer, but shall treat the Issuer as a security
device and as a disregarded entity for federal and any applicable state income
tax purposes. The provisions of this Indenture shall be construed in
furtherance of the foregoing intended tax treatment.


 


Section 4.06. Satisfaction and
Discharge of Indenture.


 


This
Indenture shall cease to be of further effect with respect to the Notes except
as to (i) rights of registration of transfer and exchange,
(ii) substitution of mutilated, destroyed, lost or stolen Notes,
(iii) rights of Holders to receive payments of principal thereof and
interest thereon, (iv) Sections 3.03, 3.04, 3.15, 4.05,
6.07, 10.15 and the second sentence of 10.16, and
(v) the rights, obligations and immunities of the Indenture Trustee
hereunder (including the rights of the Indenture Trustee under Section 6.07
and the obligations of the Indenture Trustee under Section 4.07), when:


 


(A)                              either


 


(1)                                  all Notes theretofore authenticated and
delivered (other than (i) Notes that have been destroyed, lost or stolen
and that have been replaced or paid as provided in Section 4.03 and
(ii) Notes for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust, as provided in Section 3.03)
have been delivered to the Indenture Trustee for cancellation; or


 


(2)                                  all Notes not theretofore delivered to the
Indenture Trustee for cancellation have been indefeasibly redeemed in full, and
all other obligations of the Issuer under this Indenture have been completely
discharged, whether on the Maturity Date or earlier as provided in this Indenture;
and


 


(B)                                the Issuer has delivered to the Indenture
Trustee an Officer’s Certificate meeting the applicable requirements of Section 10.01
and, subject to Section 10.01, stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture with respect to the Notes have been complied with (or, in the
case of obligations of the Issuer which survive the satisfaction and discharge
of this Indenture, stating that such obligations are currently being complied
with); and


 


(C)                                By acceptance of any Note, the Holder thereof agrees to surrender such
Note to the Indenture Trustee promptly upon such Holder’s receipt of the
Outstanding principal balance of such Note, together with all accrued and
unpaid interest and fees (if any) thereon.


 


30

















 


Upon the delivery of the Officer’s Certificate described in subclause
(B) above, the respective obligations and responsibilities of the Issuer
and the Indenture Trustee created hereby shall terminate; and the Indenture Trustee, on written demand of and
at the expense of the Issuer, shall execute (i) proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the Notes and (ii) any necessary
reconveyance instruments or assignments releasing any remaining
Indenture Collateral to the Issuer.


 


Section 4.07. Application of Trust Money.


 


All moneys deposited with the Indenture Trustee into the Class A-1
Notes Account shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent, as the Indenture Trustee may determine, to the Holders of Notes for the
payment or repurchase of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal and
interest; but such moneys need not be segregated from other funds except to the
extent required herein or required by law.


 


Section 4.08. Repayment of Moneys Held by Paying
Agent.


 


In connection with the satisfaction and discharge of this Indenture
with respect to the Notes, all moneys then held by any Paying Agent other than
the Indenture Trustee under the provisions of this Indenture with respect to
such Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee
to be held and applied according to Section 3.05 and Section 8.02 and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.


 


ARTICLE V                              REMEDIES


 


Section 5.01. Events of Default.


 


Any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body)
shall constitute an Event of Default:


 


(i)                                     a default in the
payment of any interest on any Note when the same becomes due and payable and
such default shall continue for a period of two (2) Business Days;


 


(ii)                                  failure to pay the
Outstanding principal balance of the Notes on the Maturity Date;


 


(iii)                               there occurs a default
in the observance or performance in any material respect of any covenant or
agreement of the Issuer made in this Indenture, or any representation or
warranty of the Issuer made in this Indenture proving to have been incorrect in
any material respect as of the time when the same shall have been made and such
default or incorrect representation or warranty has a material adverse effect
on the rights of the Holders, and such default shall continue or not be cured,
or the circumstance


 


31

















 


or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or otherwise cured, for a period of thirty (30)
days (if such failure can be remedied) after there shall have been given to the Issuer by the
Indenture Trustee or to the
Issuer and the Indenture Trustee, by any Holder, a written notice specifying
such default or incorrect representation or warranty and requiring it to be
remedied and stating that such notice is a notice of default hereunder;


 


(iv)                              there occurs the filing of a decree or order
for relief by a court having jurisdiction over the Issuer or any substantial
part of the Indenture Collateral in an involuntary case under any applicable
federal or state bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial part of
the Indenture Collateral, or ordering the winding–up or liquidation of the
Issuer’s affairs, and such decree or order shall remain unstayed and in effect
for a period of thirty (30) consecutive days;


 


(v)                                 there occurs the commencement by the Issuer
of a voluntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or the consent by
the Issuer to the entry of an order for relief in an involuntary case under any
such law, or the consent by the Issuer to the appointment or taking possession
by a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the assets of the
Indenture Collateral, or the making by the Issuer of any general assignment for
the benefit of creditors, or the failure by the Issuer generally to pay its
debts as such debts become due, or the taking of any action by the Issuer in
furtherance of any of the foregoing;


 


(vi)                              the Indenture Trustee, on behalf of the
Holders, shall fail to have a valid and perfected first priority security
interest in the Indenture
Collateral, and such failure to have a perfected first priority security
interest shall have a material adverse effect on the Holders;


 


(vii)                           the Issuer is required to be registered as an
“investment company” under the Investment Company Act; or


 


(viii)                        the failure by the Guarantor to honor a demand for payment by the Indenture
Trustee under the terms of the Guaranty.


 


The
Issuer shall deliver to the Indenture Trustee and the Rating Agencies, within
two (2) Business Days after the occurrence of an Event of Default, written
notice in the form of an Officer’s Certificate of any event which with the
giving of notice and the lapse of time would become an Event of Default under
clause (v) of the definition of “Event of Default,” its status and what
action the Issuer is taking or proposes to take with respect thereto.


 


Section 5.02. Acceleration of Maturity; Rescission
and Annulment.


 


If
an Event of Default should occur and be continuing, (other than an Event of
Default specified in Section 5.01(iv), 5.01(v), or 5.01(viii)), then and in every such case the Indenture Trustee
or the Majority Holders may declare the Notes to be immediately due and payable, by a


 


32

















 


notice in writing to the Issuer and the Rating Agencies (and to the
Indenture Trustee if given by Holders), and upon any such declaration the
unpaid principal balance of such Notes, together with accrued and unpaid
interest thereon through the date of acceleration, shall become immediately due
and payable. If an Event of Default specified in Section 5.01(iv) or Section 5.01(v) occurs, the unpaid principal balance of the Notes, together with accrued
and unpaid interest thereon through the date of acceleration, shall become
immediately due and payable.


 


At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided, the
Majority Holders, by written notice to the Issuer and the Indenture Trustee,
may rescind and annul such declaration and its consequences if:


 


(A)                              the Issuer has paid or
deposited with the Indenture Trustee a sum sufficient to pay:


 


(i)                                     all payments of
principal of and accrued and unpaid interest on the Notes and all other amounts
that would then be due hereunder and upon the Notes if the Event of Default
giving rise to such acceleration had not occurred; and


 


(ii)                                  all sums paid or
advanced by the Indenture Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee and its agents
and counsel; and


 


(B)                                all Events of Default,
other than the nonpayment of the principal of the Notes that has become due
solely by such acceleration, have been cured or waived as provided in Section 5.12.


 


No such rescission or annulment shall affect any subsequent default or
impair any right consequent thereto.


 


Section 5.03. Collection of Indebtedness and
Suits for Enforcement by Indenture Trustee.


 


(a)                                  The
Issuer covenants that if (i) default is made in the payment of any
interest on any Note when the same becomes due and payable, and such default
continues for a period of five (5) Business Days, or (ii) default is
made in the payment of the principal any Note when the same becomes due and
payable, the Issuer will, upon demand of the Indenture Trustee, pay to it, for
the benefit of the Holders, the whole amount then due and payable on the Notes
for principal and interest, with interest upon the overdue principal, and in
addition thereto such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents and counsel.


 


(b)                                 In
case the Issuer shall fail forthwith to pay such amounts upon such demand, the Indenture
Trustee, in its own name and as trustee of an express trust, with the consent
of the Majority Holders and subject to the provisions of Section 10.17 may institute a
Proceeding for the collection of the sums so due and unpaid, and may prosecute
such Proceeding to judgment or


 


33

















 


final
decree, and may enforce the same against the Issuer or other obligor upon the
Notes and collect in the manner provided by law out of the Indenture Collateral,
wherever situated, the moneys
adjudged or decreed to be payable.


 


(c)                                  If an Event of Default occurs and is
continuing, the Indenture Trustee may, as more particularly provided in Section 5.04, in its discretion, proceed to protect and
enforce its rights and the
rights of the Holders and by such appropriate Proceedings as the Indenture Trustee shall deem most effective to protect
and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in the Indenture Trustee
by this Indenture or by law.


 


(d)                                 In case there shall be pending, relative to
the Issuer or any other obligor upon the Notes, to the Guarantor upon the Guaranty or any Person having or
claiming an ownership interest in the Indenture Collateral, Proceedings under Title 11 of the United States
Code or any other applicable
federal or state bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or the Guarantor or their respective property or such
other obligor or Person, or in case of any other comparable judicial
Proceedings relative to the Issuer or other obligor upon the Notes, to the
Guarantor upon the Guaranty or to the creditors or property of the Issuer or
such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee
shall have made any demand pursuant to the provisions of this Section 5.03, shall be entitled and empowered, by intervention in such Proceedings or
otherwise:


 


(i)                                     to file and prove a claim or claims for the
whole amount of principal and interest owing and unpaid in respect of the Notes
or the Guaranty, as applicable, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all reasonable expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee, except as a result of negligence or bad faith)
and of the Holders allowed in such Proceedings;


 


(ii)                                  unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Notes in any election of a
trustee, a standby trustee or Person performing similar functions in any such
Proceedings;


 


(iii)                               to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the Holders and of the Indenture
Trustee on their behalf;


 


(iv)                              to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of
the Indenture Trustee or the
Holders allowed in any judicial proceedings relative to the Issuer, its
creditors and its property; and


 


34

















 


(v)                                 to participate as a member, voting or
otherwise, of any official committee of creditors appointed in such matter;


 


and any trustee, receiver,
liquidator, custodian or other similar official in any such Proceeding is
hereby authorized by each of such Holders to make payments to the Indenture
Trustee, and, in the event that the Indenture Trustee shall consent to the
making of payments directly to such Holders, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Indenture Trustee and each predecessor Indenture
Trustee except as a result of negligence or bad faith.


 


(e)                                  Nothing
herein contained shall be deemed to authorize the Indenture Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder thereof or to authorize the Indenture
Trustee to vote in respect of the claim of any Holder in any such proceeding
except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar Person.


 


(f)                                    All
rights of action and of asserting claims under this Indenture, or under any of
the Notes, may be enforced by the Indenture Trustee without the possession of
any of the Notes or the production thereof in any trial or other Proceedings
relative thereto, and any such action or proceedings instituted by the
Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses, disbursements
and compensation of the Indenture Trustee, each predecessor Indenture Trustee
and their respective agents and attorneys, shall be for the ratable benefit of the Holders of the Notes.


 


(g)                                 In
any Proceedings brought by the Indenture Trustee (and also any Proceedings
involving the interpretation of any provision of this Indenture to which the
Indenture Trustee shall be a party), the Indenture Trustee shall be held to
represent all the Holders of the Notes, and it shall not be necessary to make any
Holder a party to any such Proceedings.


 


Section 5.04. Remedies; Priorities.


 


(a)                                  If
an Event of Default shall have occurred and be continuing, the Indenture Trustee
may do one or more of the following (subject to Section 5.05 and Section 5.15):


 


(i)                                     institute
Proceedings in its own name and as trustee of an express trust for the
collection of all amounts then payable on the Notes or under this Indenture
with respect thereto, whether by declaration or otherwise, and all amounts
payable under the Indenture Collateral, enforce any judgment obtained, and
collect from the Issuer and any other obligor upon such Notes and from the
Guarantor upon the Guaranty moneys adjudged due;


 


(ii)                                  institute Proceedings
from time to time for the complete or partial foreclosure of this Indenture with respect to the Indenture Collateral
or for enforcement of its rights
in the Indenture Collateral;


 


35

















 


(iii)                               exercise any remedies of
a secured party under the UCC and take any other appropriate action to protect
and enforce the rights and remedies of the Indenture Trustee and the Holders of
the Notes; and


 


(iv)                              sell the Indenture
Collateral or any portion thereof or rights or interest therein;


 


provided, however, that the Indenture
Trustee may not sell or otherwise liquidate the Indenture Collateral following
an Event of Default, other than a default in the payment of any principal or
interest on the Notes for thirty (30) days or more, unless (A) the Holders
unanimously consent thereto, (B) the proceeds of such sale or liquidation
distributable to the Holders are sufficient to discharge in full all amounts
then due and unpaid upon the Notes for principal and accrued and unpaid
interest, or (C) the Indenture Trustee determines that the Indenture
Collateral will not continue to provide sufficient funds for the payment of
principal of and interest on the Notes, in accordance with their respective
terms as they would have become due if the Notes had not been declared due and
payable, and the Indenture Trustee obtains the consent of the Holders
evidencing 66 2/3% of the Aggregate Outstanding Principal Balance. In
determining such sufficiency or insufficiency with respect to clauses
(B) and (C), the Indenture Trustee may, but need not, obtain and rely upon
an opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Indenture Collateral for such purpose.


 


(b)                                 If
the Indenture Trustee collects any money or property pursuant to this Article V,
it shall pay out the money or property pro rata to the Holders.


 


The Indenture Trustee may fix a record date and Payment Date for any
payment to Holders pursuant to this Section 5.04.  At least
five (5) days before such record date, the Issuer shall mail to each
Holder and the Indenture Trustee a notice that states the record date, the
Payment Date and the amount to be paid.


 


Section 5.05. Optional Preservation of the
Indenture Collateral.


 


If the Notes have been declared to be due and payable under Section 5.02
following an Event of Default and such declaration and its consequences have
not been rescinded and annulled, the Indenture Trustee may, but need not, elect
to maintain possession of the Indenture Collateral. It is the desire of the
parties hereto and the Holders that there be at all times sufficient funds for
the payment of principal of and interest on the Notes and other obligations of
the Issuer and the Indenture Trustee shall take such desire into account when
determining whether or not to maintain possession of the Indenture Collateral.
In determining whether to maintain possession of the Indenture Collateral, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the
Indenture Collateral for such purpose.


 


36














 


Section 5.06. Limitation of Suits.


 


No Holder of any Note shall have any right to institute any Proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless and subject
to the provisions of Section 10.17 hereof:


 


(i)                                     the Indenture
Trustee has received from the Issuer or from such Holder a notice that an Event
of Default has occurred and is continuing;


 


(ii)                                  the Holders
evidencing 25% of the Aggregate Outstanding Principal Balance have made written
request to the Indenture Trustee to institute such Proceeding in respect of
such Event of Default in its own name as Indenture Trustee hereunder;


 


(iii)                               such Holder or Holders
have offered to the Indenture Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in complying with such request;


 


(iv)                              the Indenture Trustee for
sixty (60) days after its receipt of such notice, request and offer of
indemnity has failed to institute such Proceedings; and


 


(v)                                 no direction
inconsistent with such written request has been given to the Indenture Trustee
during such sixty (60) day period by the Holders of a majority of the
Outstanding principal balance of the Notes.


 


It is understood and intended that no one or more Holders of Notes
shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture,
except in the manner herein provided.


 


In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes, each representing less than a majority of the Aggregate Outstanding
Principal Balance, the Indenture Trustee in its sole discretion may determine
what action, if any, shall be taken, notwithstanding any other provisions of
this Indenture.


 


Section 5.07. Unconditional Rights of
Holders To Receive Principal and Interest.


 


Notwithstanding any other provisions in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive payment of the
principal of and interest, if any, on such Note on or after the
respective due dates thereof expressed in such Note or in this Indenture and
such right shall not be impaired without the consent of such Holder.


 


Section 5.08. Restoration of Rights and
Remedies.


 


If the Indenture Trustee or any Holder has instituted any Proceeding to
enforce any right or remedy under this Indenture and such Proceeding has been
discontinued or abandoned for any reason or has been determined adversely to
the Indenture Trustee or to such Holder, then and in every such case the
Issuer, the Indenture Trustee and the Holders shall, subject to any


 


37

















 


determination in such Proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Indenture Trustee and the Holders shall continue as though no
such Proceeding had been instituted.


 


Section 5.09. Rights and Remedies
Cumulative.


 


No right or remedy herein conferred upon or reserved to the Indenture
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now
or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.


 


Section 5.10. Delay or Omission Not a
Waiver.


 


No delay or omission of the Indenture Trustee or any Holder of any Note
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article V
or by law to the Indenture Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Indenture Trustee or
by the Holders, as the case may be.


 


Section 5.11. Control by Holders.


 


The Majority Holders shall have the right to direct the time, method
and place of conducting any Proceeding for any remedy available to the
Indenture Trustee with respect to the Notes or exercising any trust or power
conferred on the Indenture Trustee; provided, that:


 


(i)                                     such direction
shall not be in conflict with any rule of law or with this Indenture;


 


(ii)                                  subject to the
express terms of Section 5.04, any direction to the Indenture
Trustee to sell or liquidate the Indenture Collateral shall be by Holders of
the Notes representing 100% of the Aggregate Outstanding Principal Balance of
all Notes;


 


(iii)                               subject to the express
terms of Section 5.04, any direction to the Indenture Trustee to
terminate or release the Guaranty shall be by Holders of the Notes representing
100% of the Aggregate Outstanding Principal Balance of all Notes;


 


(iv)                              if the conditions set
forth in Section 5.05 have been satisfied and the Indenture Trustee
elects to retain the Indenture Collateral pursuant to such Section, then any
direction to the Indenture Trustee to sell or liquidate the Indenture
Collateral shall be of no force and effect unless the Holders unanimously
consent thereto; and


 


(v)                                 the Indenture Trustee
may take any other action deemed proper by the Indenture Trustee that is not
inconsistent with such direction.


 


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Notwithstanding the rights of Holders set forth in this Section 5.11, subject to Section 6.01, the Indenture Trustee need not take
any action that it determines might involve it in liability or might materially
adversely affect the rights of any Holders not consenting to such action.


 


Section 5.12. Waiver of Past Defaults.


 


Prior to the declaration of the acceleration of the maturity of the
Notes as provided in Section 5.02, the
Majority Holders may waive any past Event of Default and its consequences
except an Event of Default with respect to payment of principal of or interest
on any of the Notes or in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of the Holder of each Note.
In the case of any such waiver, the Issuer, the Indenture Trustee and the
Holders shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Event
of Default or impair any right consequent thereto.


 


Upon any such waiver, any Event of Default arising therefrom shall be
deemed to have been cured and not to have occurred, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent thereto.


 


Section 5.13. Undertaking for Costs.


 


All parties to this Indenture agree, and each Holder of any Note by
such Holder’s acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Indenture Trustee for
any action taken, suffered or omitted by it as Indenture Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section 5.13 shall not apply
to (a) any suit instituted by the Indenture Trustee, (b) any suit
instituted by any Holder, or group of Holders, in each case holding in the
aggregate more than 25% of the Aggregate Outstanding Principal Balance or
(c) any suit instituted by any Holder for the enforcement of the payment
of principal of or interest on any Note on or after the respective due dates
expressed in such Note and in this Indenture.


 


Section 5.14. Waiver of Stay or Extension
Laws.


 


The Issuer covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead or in any manner whatsoever, claim
or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, that may affect the covenants
or the performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Indenture Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.


 


39

















 


Section 5.15. Sale of Indenture
Collateral.


 


(a)                                  The
power to effect any sale or other disposition (a “Sale”) of any portion
of a Indenture Collateral pursuant to Section 5.04
is expressly subject to the provisions of Section 5.05 and this Section 5.15. The power to effect any such Sale
shall not be exhausted by any one or
more Sales as to any portion of the Indenture Collateral remaining unsold, but
shall continue unimpaired until the entire Indenture Collateral shall have been
sold or all amounts payable on the Notes and under this Indenture shall
have been paid. The Indenture Trustee hereby expressly waives its right to any amount fixed by law as compensation for any
Sale.


 


(b)                                 The Indenture Trustee shall not in any
private Sale sell the Indenture Collateral, or any portion thereof,
unless the Holders of all of the Notes consent to or direct the Indenture
Trustee to make such Sale and:


 


(i)                                     the proceeds of
such Sale would be not less than the entire amount which would be payable to the Holders under the
Notes, in full payment thereof on the Payment Date next succeeding the date of
such Sale, or


 


(ii)                                  the Indenture Trustee determines, in its sole
discretion, that the conditions for retention of the Indenture Collateral set
forth in Section 5.05 cannot be satisfied (in making any such
determination, the Indenture Trustee may rely upon an opinion of an Independent
investment banking or accounting firm obtained and delivered as provided in Section 5.05,
and the Majority Holders consent to such Sale, which consent will not be
unreasonably withheld).


 


(c)                                  In connection with a Sale of all or any
portion of the Indenture Collateral:


 


(i)                                     any Holder or Holders of Notes may bid for
and purchase the property offered for Sale, and upon compliance with the terms
of Sale may hold, retain and possess and dispose of such property,
without further accountability, and may, in paying the purchase money therefor, deliver any Notes or claims for interest
thereon in lieu of cash up to the amount which shall, upon distribution
of the net proceeds of such Sale, be payable
thereon, and such Notes, in case the amounts so payable thereon shall be less
than the amount due thereon, shall be returned to the Holders thereof after
being appropriately stamped to show such partial payment;


 


(ii)                                  the Indenture Trustee
may bid for and acquire the property offered for Sale in connection with any Sale thereof, and,
subject to any requirements of, and to the extent permitted by, Requirements of
Law in connection therewith, may purchase all or any portion of the Indenture
Collateral in a private sale, and, in lieu of paying cash therefor, may make
settlement for the purchase price by crediting the gross Sale price against the
sum of (A) the amount which would be distributable to the Holders of the
Notes as a result of such Sale in accordance with subsection 5.04(b) on the Payment Date next
succeeding the date of such Sale and (B) the expenses of the Sale and of any Proceedings in connection therewith
which are reimbursable to it, without being required to produce the Notes in
order to complete any such Sale or in order for the net Sale price to be
credited against such Notes, and any property so acquired by the Indenture
Trustee shall be held and dealt with by it in accordance with the provisions of
this Indenture;


 


40

















 


(iii)                               the Indenture Trustee shall execute and
deliver an appropriate instrument of conveyance transferring its interest in
any portion of the Indenture Collateral in connection with a Sale thereof;


 


(iv)                              the Indenture Trustee is hereby irrevocably
appointed the agent and attorney–in–fact of the Issuer to transfer and convey
its interest in any portion of the Indenture Collateral in connection with a
Sale thereof, and to take all
action necessary to effect such
Sale; and


 


(v)                                 no purchaser or transferee at such a Sale
shall be bound to ascertain the Indenture Trustee’s authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
moneys.


 


Section 5.16. Action on Notes.


 


The
Indenture Trustee’s right to seek and recover judgment on the Notes or under
this Indenture shall not be affected by the seeking, obtaining or application
of any other relief under or with respect to this Indenture. Neither the lien
of this Indenture nor any rights or remedies of the Indenture Trustee or the
Holders shall be impaired by the recovery of any judgment by the Indenture
Trustee against the Issuer or by the levy of any execution under such judgment
upon any portion of the
Indenture Collateral or upon any of the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with subsection 5.04(b).


 


Section 5.17. Performance and Enforcement of Certain
Obligations.


 


Promptly
following a request from the Indenture Trustee to do so, the Issuer shall take
all such lawful action as the Indenture Trustee may request to compel or secure
the performance and observance by the Issuer, any issuer of the Installment
Notes or the Guarantor of each of their obligations to the Issuer under or in
connection with the Installment Notes, the Guaranty and the other the
Transaction Documents, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Installment Notes, the Guaranty and the other Transaction Documents to the
extent and in the manner directed by the Indenture Trustee, including
institution of legal or administrative actions or proceedings to compel or
secure performance of obligations under the Transaction Documents.


 


ARTICLE VI                          THE INDENTURE TRUSTEE


 


Section 6.01. Duties of Indenture Trustee.


 


(a)                                  If an Event of Default has occurred and is
continuing, the Indenture Trustee shall exercise the rights and powers vested
in it by this Indenture and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person’s own affairs with respect to the Indenture
Collateral.


 


(b)                                 Except during the continuance of an Event of
Default:


 


41

















 


(i)                                     the Indenture
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Indenture Trustee;
and


 


(ii)                                  in the absence of bad
faith on its part, the Indenture Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture Trustee and conforming to
the requirements of this Indenture; however, the Indenture Trustee shall
examine the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.


 


(c)                                  The
Indenture Trustee may not be relieved from liability for its own negligent action,
its own negligent failure to act, its own willful misconduct or actions taken
in bad faith, except that:


 


(i)                                     this paragraph
does not limit the effect of paragraph
(b) of this Section 6.01;


 


(ii)                                  the Indenture Trustee
shall not be liable for any error of judgment made in good faith by a Responsible
Officer unless it is proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts; and


 


(iii)                               the Indenture Trustee
shall not be liable with respect to any action it takes or omits to take in
good faith in accordance with a direction received by it pursuant to Section 5.11.


 


(d)                                 Every
provision of this Indenture that
in any way relates to the Indenture Trustee is subject to paragraphs (a), (b), (c) and (g) of
this Section 6.01.


 


(e)                                  The
Indenture Trustee shall not be liable
for interest on any money received by it except as the Indenture Trustee may
agree in writing with the Issuer.


 


(f)                                    Money held in trust by the Indenture Trustee
need not be segregated from other funds except to the extent required by law or
the terms of this Indenture.


 


(g)                                 The Indenture Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Indenture, to expend or risk its own funds or otherwise incur financial
liability or to honor the request or direction of any of the Holders pursuant
to this Indenture, unless the Holders shall have offered to the Indenture
Trustee reasonable security or indemnity against the costs, expenses, and
liabilities that might be incurred by it in compliance with the request or direction.


 


(h)                                 Every
provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Indenture Trustee shall be subject to the provisions of this Section 6.01.


 


(i)                                     The Indenture Trustee shall not be
deemed to have notice of any Event of Default unless a Responsible Officer
assigned to and working in the Indenture Trustee’s Corporate Trust


 


42

















 


Office has actual knowledge thereof or if such notice has been
delivered in accordance with Section 10.09.


 


Section 6.02. Rights of Indenture Trustee.


 


(a)                                  The
Indenture Trustee may rely on any document believed by it to be genuine and to
have been signed or presented by the proper person. The Indenture Trustee need
not investigate any fact or matter stated in the document.


 


(b)                                 Before
the Indenture Trustee acts or refrains from acting, it may require an Officer’s
Certificate, or, with respect to legal matters, an Opinion of Counsel. The
Indenture Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.


 


(c)                                  The
Indenture Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys or a
custodian or nominee, and the Indenture Trustee shall not be responsible for
any misconduct or negligence on the part of, or for the supervision of, any
such agent, attorney, custodian or nominee appointed with due care by it hereunder.


 


(d)                                 The
Indenture Trustee shall not be liable for any action it takes or omits to take
in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Indenture Trustee’s conduct does not
constitute willful misconduct, negligence or bad faith.


 


(e)                                  The
Indenture Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the Notes
shall be full and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.


 


(f)                                    The
Indenture Trustee shall not be bound to make any investigation into the performance
of the Issuer under this Indenture or any other Transaction Document or into
the matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, note or
other document, but the Indenture Trustee, in its discretion, may make any
further inquiry or investigation into those matters that it deems appropriate,
and if the Indenture Trustee determines to inquire further, it shall be
entitled to examine the books, records and premises of the Issuer, personally
or by agent or attorney.


 


(g)                                 If
the Indenture Trustee is also acting as Paying Agent or as Note Registrar, the rights
and protections afforded to the Indenture Trustee pursuant to this
Article shall also be afforded to it in such additional capacities.


 


Section 6.03. Individual Rights of
Indenture Trustee.


 


The Indenture Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with the Issuer or
its Affiliates with the same rights it would have if it were not Indenture
Trustee. Any Note Registrar, co–registrar, Paying Agent or


 


43

















 


co–paying
agent may do the same with like rights. However, the Indenture Trustee must
comply with Section 6.11.


 


Section 6.04. Indenture Trustee’s
Disclaimer.


 


The Indenture Trustee (a) shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the Limited
Liability Company Agreement or any other Transaction Document, the validity or
sufficiency of any security interest intended to be created or the
characterization of the Notes for tax purposes; (b) shall not be accountable
for the Issuer’s use of the proceeds from the Notes; and (c) shall not be
responsible for any statement of the Issuer in the Indenture or in any document
issued in connection with the sale of the Notes or in the Notes other than the
Indenture Trustee’s certificate of authentication.


 


Section 6.05. Notice of Event of
Default.


 


The Indenture Trustee shall mail to each Holder notice of an Event of
Default within thirty (30) days after the Indenture Trustee has actual
knowledge thereof in accordance with Section 6.01. Except in the
case of an Event of Default in payment of principal of or interest on any Note,
the Indenture Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the notice
is in the interests of Holders.


 


Section 6.06. Reports by Indenture
Trustee to Holders.


 


The Indenture Trustee shall deliver to each Holder such information as
may be required to enable such Holder to prepare its federal and state income
tax returns. In addition, upon the Issuer’s or a Holder’s written request, the
Indenture Trustee shall promptly furnish information reasonably requested by
the Issuer or such Holder that is reasonably available to the Indenture Trustee
to enable the Issuer or such Holder to perform its federal and state income tax
reporting obligations.


 


The Indenture Trustee shall not be responsible for the tax reporting,
disclosure, record keeping or other requirements of the Issuer, if any, under
Internal Revenue Code sections 6011(a) or 6112, including, but not limited
to, the preparation of IRS Form 8886 pursuant to Treasury Regulations
Section 1.6011-4(d) or any successor provision.


 


Section 6.07. Compensation and
Indemnity.


 


The Issuer shall pay to the Indenture Trustee (i) on the Closing
Date a fee in the amount of $10,000 and (ii) on each Payment Date a fee in
the amount of $7,500 (the “Indenture Trustee Fee”). By its execution of this Indenture, the Indenture Trustee
acknowledges receipt of (A) the initial $10,000 fee and
(B) $15,000 representing the prepayment of the $7,500 payments due in
connection with the first two (2) Payment
Dates. The Indenture Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall
reimburse the Indenture Trustee for all reasonable out–of–pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee’s agents,
counsel, accountants and experts. The Issuer shall indemnify the


 


44

















 


Indenture
Trustee against any and all loss, liability or expense (including attorneys’
fees) incurred by it in connection with the administration of this trust
and the performance of its duties hereunder. The Indenture Trustee shall notify
the Issuer promptly of any claim for which it may seek indemnity. Failure by the Indenture
Trustee to so notify the Issuer shall not relieve the Issuer of its
obligations hereunder or under the Limited Liability Company Agreement. The
Issuer need not reimburse any expense or indemnify against any loss, liability
or expense incurred by the Indenture Trustee through the Indenture Trustee’s
own willful misconduct, negligence or bad faith.


 


The Indenture Trustee hereby agrees not to cause the filing of a
petition in bankruptcy, insolvency, reorganization, moratorium, receivership,
conservatorship or other similar laws now or hereafter in effect against the
Issuer for the non-payment to the Indenture Trustee of any amounts provided by
this Section 6.07 until at least one year and one day, or, if
longer, the applicable preference period then in effect, after the payment in
full of all Notes issued under this Indenture.


 


The Indenture Trustee shall receive amounts pursuant to this Section 6.07,
and only to the extent that the payment thereof would not result in an Event of
Default and the failure to pay such amounts to the Indenture Trustee will not, by itself,
constitute an Event of Default. Subject
to Section 6.08, the Indenture Trustee shall continue to
serve as Indenture Trustee under this Indenture notwithstanding the fact that
the Indenture Trustee shall not have received amounts due it hereunder and
hereby agrees not to cause the filing of a petition in bankruptcy, insolvency,
reorganization, moratorium, receivership, conservatorship or other similar laws
now or hereafter in effect against the Issuer for the nonpayment to the
Indenture Trustee of any amounts provided by this Section 6.07
until at least one year and one day, or, if longer, the applicable preference
period then in effect, after the payment in full of all Notes issued under this
Indenture.


 


Section 6.08. Replacement of Indenture Trustee.


 


No resignation or removal of the Indenture Trustee and no appointment
of a successor Indenture Trustee shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section 6.08.
The Indenture Trustee may resign at any time by so notifying the Issuer. The
Majority Holders or the Issuer, with the written consent of the Majority
Holders, may remove the Indenture Trustee by so notifying the Indenture Trustee
and the Rating Agencies in writing and may appoint a successor Indenture
Trustee. The Issuer shall remove the Indenture Trustee if:


 


(i)                                     the Indenture
Trustee fails to comply with Section 6.11;


 


(ii)                                  the Indenture Trustee
is adjudged a bankrupt or insolvent;


 


(iii)                               a receiver or other
public officer takes charge of the Indenture Trustee or its property;


 


(iv)                              the Indenture Trustee
otherwise becomes incapable of acting; or


 


45

















 


(v)                                 the Indenture Trustee
defaults in any of its obligations under the Transaction Documents and such
default is not cured within thirty (30) days after a Responsible Officer of the
Indenture Trustee receives written
notice of such default.


 


If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in
such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture Trustee.


 


A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become
effective, and the successor Indenture Trustee shall have all the rights, powers and duties of the Indenture
Trustee under this Indenture. No successor Indenture Trustee shall
accept appointment as provided in this Section 6.08 unless at the
time of such acceptance such Person shall be eligible under the provisions of Section 6.11.
The successor Indenture Trustee shall mail a notice of its succession to
Holders. The retiring Indenture Trustee shall promptly transfer all property
(including all Indenture Collateral) held by it as Indenture Trustee to the
successor Indenture Trustee and shall execute and deliver such instruments and
such other documents as may reasonably be required to more fully and certainly
vest and confirm in the successor Indenture Trustee all such rights, powers,
duties and obligations.


 


If a successor Indenture Trustee does not take office within sixty (60)
days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Majority Holders, may petition any court
of competent jurisdiction for the appointment of a successor Indenture Trustee.


 


If the Indenture Trustee fails to comply with Section 6.11,
any Holder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.


 


Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section 6.08, the Issuer’s obligations under Section 6.07
shall continue for the benefit of the retiring Indenture Trustee.


 


Upon acceptance of appointment by a successor Indenture Trustee as
provided in this Section 6.08, the Issuer shall mail notice of such
succession hereunder to all Holders of Notes at their addresses as shown in the
Note Register at their addresses as shown on the register kept by the Issuer,
as provided to the Indenture Trustee. If the Issuer fails to mail such notice
within ten (10) days after acceptance of appointment by the successor
Indenture Trustee, the successor Indenture Trustee shall cause such notice to
be mailed at the expense of the Issuer.


 


Section 6.09. Successor Indenture
Trustee by Merger.


 


If the Indenture Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor Indenture
Trustee; provided, that, such corporation or banking association
shall be otherwise qualified and eligible under Section 6.11. The
Indenture Trustee shall provide the Rating Agencies prior written notice of any
such transaction.


 


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In
case at the time such successor or successors by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Indenture Trustee may authenticate
such Notes either in the name of any predecessor hereunder or in the name of
the successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this
Indenture provided that the certificate of the Indenture Trustee shall have.


 


Section 6.10.   Appointment
of Co—Indenture Trustee or Separate Indenture Trustee.


 


(a)           Notwithstanding any other provisions
of this Indenture, at any time, for the purpose of meeting any legal requirement
of any jurisdiction in which any part of the Indenture Collateral may at the
time be located, the Indenture Trustee shall have the power and may execute and
deliver all instruments to appoint one or more Persons, to act as a co—trustee
or co—trustees, or separate trustee or separate trustees, of all or any part of
the Indenture Collateral, and to vest in such Person or Persons, in such
capacity and for the benefit of the Holders, such interest to the Indenture
Collateral, or any part hereof, and, subject to the other provisions of this Section 6.10, such powers,
duties, obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co—trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor Indenture Trustee
under Section 6.11 and no notice to the Holders of the
appointment of any co—trustee or separate trustee shall be required under Section 6.08 hereof.  No appointment of a co—trustee or a separate
trustee shall relieve the Indenture Trustee of its duties and obligations
hereunder.


 


(b)           Every separate trustee and co—trustee
shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:


 


(i)            all rights, powers,
duties and obligations conferred or imposed upon the Indenture Trustee shall be
conferred or imposed upon and exercised or performed by the Indenture Trustee
and such separate trustee or co—trustee jointly (it being understood that such
separate trustee or co—trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be performed the
Indenture Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations (including the
holding of title to the Indenture Collateral or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co—trustee, but solely at the direction of the Indenture Trustee;


 


(ii)           no trustee
hereunder shall be personally liable by reason of any act or omission of any
other trustee hereunder; and


 


(iii)          the Indenture
Trustee may at any time accept the resignation of or remove any separate
trustee or co—trustee.


 


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(c)           Any notice, request or other writing
given to the Indenture Trustee shall be deemed to have been given to each of
the then separate trustees and co—trustees, as effectively as if given to
each of them. Every instrument appointing any separate trustee or co—trustee shall refer to this
Indenture and the conditions of this Article VI. Each separate
trustee and co—trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Indenture Trustee or
separately, as may be provided therein, subject to all the provisions
of this Indenture, specifically including every provision of this Indenture
relating to the conduct of affecting the liability of, or affording protection
to, the Indenture Trustee. Every such instrument shall be filed with the
Indenture Trustee.


 


(d)           Any separate trustee or co—trustee
may at any time constitute the Indenture Trustee, its agent or attorney—in—fact
with full power and authority, to the extent not prohibited by law, to do any lawful
act under or in respect of this Indenture on its behalf and in its name. If any separate
trustee or co—trustee shall die, become incapable of
acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Indenture
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.


 


Section 6.11.   Eligibility; Disqualification.


 


The
Indenture Trustee hereunder shall at all times be (i) a
national banking association or banking corporation or trust
company organized and doing business under the laws of any state or the United
States, (ii) authorized under such laws to exercise corporate trust
powers, (iii) having a combined capital and surplus of at least
$200,000,000, (iv) having unsecured and unguaranteed long—term debt
obligations rated at least “Baa3” by Moody’s and “BBB—” by S&P, and
(v) is subject to supervision or examination by federal or state
authority. If such banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section 6.11
its combined capital and surplus shall be deemed to be as set forth in its most
recent report of condition so published. In case at any time the Indenture
Trustee shall cease to be eligible in accordance with the provisions of this Section 6.11,
the Indenture Trustee shall (a) give prompt notice to the Issuer and
the Holders that it has so ceased to be eligible to be the Indenture Trustee
and (b) resign, upon the request of the Majority Holders in the manner and
with the effect specified in Section 6.08.


 


Section 6.12.   Representations, Warranties
and Covenants of Indenture Trustee.


 


The
Indenture Trustee hereby makes the following representations, warranties and
covenants on which the Issuer and the Holders shall rely:


 


(a)           the Indenture Trustee is a national
banking association and trust company duly organized, validly existing and in
good standing under the laws of the United States.


 


(b)           it satisfies the criteria
specified in Section 6.11.


 


(c)           The Indenture Trustee has
full power, authority and legal right to execute, deliver and perform this
Indenture and the other Transaction Documents to which it is a party and shall


 


48

















 


have
taken all necessary action to authorize the execution, deliver and performance
by it of this Indenture and the other Transaction Documents to which it is a
party.


 


(d)           The execution, delivery and
performance by the Indenture Trustee of this Indenture and the other
Transaction Documents to which it is a party shall not (i) violate any provision of
any law or any order, writ, judgment or decree of any court, arbitrator or governmental
authority applicable to the Indenture Trustee or any of its assets, (ii) violate
any provision of, the corporate charter or by–laws of the Indenture Trustee
or (iii) violate any provision of or constitute, with or without
notice or lapse of time, a default under, or result in the creation or
imposition of any lien on any, properties included in the Indenture Collateral
pursuant to the provisions of, any mortgage, indenture, contract, agreement or
other undertaking to which it is a party, which violation, default or lien
could reasonably be expected to materially and adversely affect the Indenture
Trustee’s performance or ability to perform its duties under this Indenture and
the other Transaction Documents to which it is a party or the transactions
contemplated in this Indenture and the other Transaction Documents to which it
is a party.


 


(e)           The execution, delivery and
performance by the Indenture Trustee of this Indenture and the other
Transaction Documents to which it is a party shall not require the
authorization, consent or approval of, the giving of notice to, the filing or registration
with or the taking of any other action in respect of any governmental authority
or agency regulating the banking and corporate trust activities of the
Indenture Trustee.


 


(f)            This Indenture and the other
Transaction Documents to which it is a party have been duly executed and
delivered by the Indenture Trustee and constitute the legal, valid and binding
agreements of the Indenture Trustee, enforceable in accordance with their
respective terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights
generally or the application of equitable principles in any proceeding, whether
at law or in equity. The Indenture Trustee agrees and covenants that it will
not at any time in the future, deny that this Indenture and the other
Transaction Documents to which it is a party constitute the legal, valid and
binding agreement of the Indenture Trustee.


 


(g)           The Indenture Trustee shall not take
any action, or fail to take any action, if such action or failure to take
action will materially interfere with the enforcement of any rights of the
Holders under this Indenture or the other Transaction Documents.


 


Section 6.13.   Directions to Indenture
Trustee. 


 


The
Indenture Trustee is hereby directed:


 


(i)            to accept a
collateral assignment of and to hold the assets of the Indenture Collateral as
security for the Holders and to open the Class A-1 Notes Account in
accordance with Section 3.01 and Section 8.02;


 


(ii)           to authenticate and
deliver the Notes substantially in the form prescribed by Exhibit A
in accordance with the terms of this Indenture;


 


(iii)          to execute and
deliver the Transaction Documents to which it is a party;


 


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(iv)          to take all other
actions as shall be required to be taken by the terms of this Indenture;


 


(v)           if, by 12:00 noon
(Eastern Standard Time or Daylight Time, as applicable) on the Business Day
immediately preceding a Payment Date, there are not sufficient funds in the
Class A-1 Notes Account to make the applicable interest payment on the
Notes, to make a demand for payment under the Guaranty;


 


(vi)          if, by 12:00 noon
(Eastern Standard Time or Daylight Time, as applicable) on the Business Day
immediately after the Extended Maturity Date, there are not sufficient funds in
the Class A-1 Notes Account to pay in full the Aggregate Outstanding
Principal Balance of the Notes, together with all accrued and unpaid interest
thereon, to make a demand for payment under the Guaranty; and


 


(vii)         upon the occurrence
of an Accelerated Payment Default (as defined in Guaranty), to make a demand
for payment under the Guaranty.


 


Section 6.14.   Conflicts.


 


If
a Default occurs and is continuing and the Indenture Trustee is deemed to have
a “conflicting interest” (as defined in the TIA) as a result of acting as
trustee for the Notes, the Issuer shall appoint a successor Indenture Trustee
pursuant to the terms of this Indenture. No such event shall alter the voting
rights of the Holders under this Indenture or under any of the other
Transaction Documents.


 


ARTICLE VII       HOLDERS’
LISTS AND REPORTS


 


Section 7.01.   Issuer To Furnish Indenture Trustee Names and Addresses of Holders.


 


The
Issuer will furnish or cause to be furnished to the Indenture Trustee
(a) within one day after each Record Date, a list, in such form as the
Indenture Trustee may reasonably require, of the names and addresses of the
Holders of Notes as of such Record Date and (b) at such other times as the
Indenture Trustee may reasonably request in writing, within thirty (30) days
after receipt by the Issuer of any such request, a list of similar
form and content as of a date not more than ten (10) days
prior to the time such list is furnished; provided, however,  that
so long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.


 


Section 7.02.   Preservation of Information; Communications to Holders.


 


(a)           The Indenture Trustee shall preserve,
in as current a form as is reasonably practicable, the names and addresses of
the Holders of Notes contained in the most recent list furnished to the
Indenture Trustee as provided in Section 7.01 and the names and
addresses of Holders of Notes received by the Indenture Trustee in its capacity
as Note Registrar. The Indenture Trustee may destroy any list furnished to it
as provided in such Section 7.01 upon receipt of a new list so
furnished.


 


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(b)           Holders may communicate pursuant to
TIA Section 312(b) with other Holders with respect to their rights
under this Indenture or under the Notes.


 


(c)           The Issuer, the Indenture Trustee and
the Note Registrar shall have the protection of TIA Section 312(c).


 


(d)           The Indenture Trustee shall furnish
to the Holders promptly upon receipt of a written request therefor, duplicates
or copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Indenture Trustee under
the Transaction Documents.


 


Section 7.03.   Fiscal Year.


 


Unless
the Issuer otherwise determines, the fiscal year of the Issuer shall end on
December 31 of each year.


 


ARTICLE VIII      CLASS A-1
NOTES ACCOUNT, DISBURSEMENTS AND RELEASES


 


Section 8.01.   Collection of Money.


 


Except
as otherwise expressly provided herein, the Indenture Trustee may demand
payment or delivery of, and shall receive and collect, directly and without
intervention or assistance of any fiscal agent or other intermediary, all
money and other property payable to or receivable by the Indenture Trustee
pursuant to this Indenture. The Indenture Trustee shall apply all such money
received by it as provided in this Indenture. Except as otherwise expressly
provided in this Indenture, if any Event of Default occurs in
the making of any payment or performance under any agreement or instrument that
is part of the Indenture Collateral, the Indenture Trustee may take such action
as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate Proceedings. Any such action
shall be without prejudice to any right to claim a Default or Event of Default
under this Indenture and any right to proceed thereafter as provided in Article V.


 


Section 8.02.   Class A-1 Notes
Account.


 


(a)           On or prior to the Closing Date, the
Indenture Trustee shall establish and maintain for the benefit of the Issuer,
the Class A-1 Notes Account.


 


(b)           All funds received by Indenture
Trustee which are (i) proceeds of the Installment Notes or the Guaranty
(including any amounts received as payment on the Guaranty after a demand is
made thereon) or (ii) other moneys that are accompanied by directions of
the Issuer and/or the Member, as applicable, that such moneys are to be
deposited into the Class A-1 Notes Account, shall be deposited in the
Class A-1 Notes Account.


 


(c)           On the Business Day immediately
preceding each Payment Date, the Indenture Trustee shall determine whether the
amount of interest and/or principal on the Notes that will be due for payment
on such Payment Date exceeds the amount on deposit in the Class A-1 Notes
Account. If there are insufficient funds on deposit in the Class A-1 Notes
Account to make such


 


51

















 


interest
and/or principal payments, the Indenture Trustee shall send a notice on such
Business Day immediately preceding such Payment Date, to the Paying Agent and
to the Issuer stating (i) that there will be a
shortfall in the payment of interest and/or principal on such Payment Date and
(ii) the amount of such shortfall.


 


(d)           On each Payment Date and on the
Maturity Date (if applicable), the Paying Agent shall pay from funds in the
Class A-1 Notes Account:


 


(i)            FIRST, to the
Indenture Trustee, the Indenture Trustee Fee from the preceding Interest
Accrual Period (to the extent not previously paid);


 


(ii)           SECOND, to each
Holder (A) on each Payment Date, the interest (and principal, if any) due
and owing in respect of such Holder’s Notes, and (B) on the Maturity Date,
an amount equal to the Outstanding principal balance of the Notes held by such
Holder, together with all accrued and unpaid interest thereon;


 


(iii)          THIRD, to the
Indenture Trustee, any additional expenses incurred by Indenture Trustee in
connection with the transactions contemplated by the Transaction Documents; and


 


(iv)          FOURTH, provided no
Event of Default has occurred and is continuing, to the Issuer, any remaining
funds to or at the Issuer’s direction for payment of the Issuer’s expenses of
operation and for distribution to the Member as a return on capital.


 


(e)           All moneys deposited from time to
time in the Class A-1 Notes Account pursuant to this Indenture are held
for the benefit of the Issuer and are pledged to the Indenture Trustee for the
benefit of the Holders.


 


ARTICLE IX         SUPPLEMENTAL
INDENTURES


 


Section 9.01.   Supplemental Indentures Without Consent of Holders.


 


(a)           Without the consent of the Holders of
any Notes but with the prior notice to the Rating Agencies, the Issuer and the
Indenture Trustee, when authorized by an Issuer Order, at any time and from
time to time, may enter into one or more indentures supplemental, in form
satisfactory to the Indenture Trustee, for any of the following purposes;
provided, however, that the Issuer shall only enter into an indenture supplemental
hereunder in compliance the provisions of the Limited Liability Company
Agreement:


 


(i)            to correct or
amplify the description of any assets at any time subject to the lien of this
Indenture, or better to assure, convey and confirm unto the Indenture Trustee
any property subject or required to be subjected to the lien of this Indenture,
or to subject to the lien of this Indenture additional property;


 


(ii)           to evidence the
succession, in compliance with the applicable provisions hereof, of another
person to the Issuer, and the assumption by any such successor of the covenants
of the Issuer herein and in the Notes contained;


 


52

















 


(iii)          to add to the
covenants of the Issuer, for the benefit of the Holders of the Notes, or to surrender
any right or power herein conferred upon the Issuer;


 


(iv)          to convey, transfer,
assign, mortgage or pledge any property to or with the Indenture Trustee;


 


(v)           to cure any
ambiguity, to correct or supplement any provision herein or in any supplemental
indenture that may be inconsistent with any other provision herein or in any
supplemental indenture or to make any other provisions with respect to matters
or questions arising under this Indenture or in any supplemental indenture; provided,
that, such action shall not as evidenced by an Opinion of Counsel delivered to
the Indenture Trustee, adversely affect the interests of the Holders in any
material respect;


 


(vi)          to evidence and
provide for the acceptance of the appointment hereunder by a successor trustee
with respect to the Notes and to add to or change any of the provisions of this
Indenture as shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Article VI;


 


(vii)         to add to the
conditions, limitations and restrictions on the authorized amount, terms and
purposes of the issuance, authentication and delivery of any of the Notes, as
herein set forth, additional conditions, limitations and restrictions thereafter
to be observed;


 


(viii)        to modify the
restrictions on and procedures for resales and other transfers of the Notes to
reflect any changes in Applicable Law or regulations (or the interpretation
thereof) or to enable the Issuer or the Indenture Trustee to rely upon the
exemption from registration under the Securities Act or the Investment Company
Act or to remove restrictions on resale or transfer to the extent required
hereunder; and


 


(ix)           to evidence or
implement any change to this Indenture required by regulations or guidelines
enacted to comply with the USA PATRIOT Act.


 


The
Indenture Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.


 


(b)           The Issuer and the Indenture Trustee,
when authorized by an Issuer Order, may, also without the consent of any of the
Holders of the Notes but with the receipt of written confirmation from each
Rating Agency then rating the Notes that such Act of the Holders will not
result in a downgrade, withdrawal or qualification of the ratings then assigned
to the Notes, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying in any manner the
rights of the Holders of the Notes under this Indenture; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel,
(i) adversely affect in any material respect the interest of any Holder,
(ii) cause the Issuer to be subject to an entity level tax or be
classified as a taxable mortgage pool within the meaning of Section 7701(i) of
the Code, or (iii) cause the Issuer to violate the provisions of Sections
7 or 9(i) of its Limited Liability Company Agreement.


 


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(c)           Notwithstanding any provision
contained herein to the contrary, prior to entering into any supplemental
indenture pursuant to Section 9.01,  the Issuer and
Indenture Trustee shall (i) obtain written confirmation
from Moody’s that entry by the Issuer and Indenture Trustee into such
supplemental indenture satisfies the Moody’s Rating Condition, and
(ii) obtain written confirmation from S&P that entry by the
Issuer and Indenture Trustee into such supplemental indenture satisfies the
S&P Rating Condition.


 


Section 9.02.   Supplemental Indentures
With Consent of Holders.


 


The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may,
with the consent of the Majority Holders by Act of such Holders and upon the
receipt of written confirmation from each Rating Agency rating
the Notes that such Act of the Holders will not result in a downgrade,
withdrawal or qualification of the ratings then assigned to the Notes, enter
into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying in any manner the
rights of the Holders of the Notes under this Indenture; provided, however,
that (x) that the Issuer shall only enter into an indenture
supplemental hereunder in compliance with the terms of the Limited Liability
Company Agreement, and (y) no such supplemental indenture shall, without
the consent of the Holder of each Note affected thereby:


 


(i)            change the date of
payment of principal of or interest on any Note, or reduce the principal
balance thereof or the interest rate thereon with respect thereto, change the
provisions of this Indenture relating to the application of collections on, or
the proceeds of the sale of the Indenture Collateral to payment of principal of
or interest on the Notes, or change any place of payment where, or the coin or currency
in which, any Note or the interest thereon is payable, or impair the right to
institute suit for the enforcement of the provisions of this Indenture
requiring the application of funds available therefor, as provided in Article V, to the payment
of any such amount due on the Notes on or after the respective due dates
thereof;


 


(ii)           change any of the
terms of the Guaranty;


 


(iii)          reduce the
percentage of the Aggregate Outstanding Principal Balance, the consent of the
Holders of which is required for any such supplemental indenture, or the
consent of the Holders of which is required for any waiver of compliance with
any provision of this Indenture or defaults hereunder and their consequences
provided for in this Indenture;


 


(iv)          modify or alter the
provisions of the proviso to the definition of the term “Outstanding” or modify
or alter the exception in the definition of the term “Holder”;


 


(v)           reduce the
percentage of the Aggregate Outstanding Principal Balance required to direct
the Indenture Trustee to direct the Issuer to sell or liquidate the Indenture
Collateral pursuant to Section 5.04;


 


(vi)          modify any provision
of this Section 9.02 except to increase any percentage specified
herein or to provide that certain additional provisions of this


 


54

















 


Indenture
or the Transaction Documents cannot be modified or waived without the consent
of the Holder of each Note affected thereby; or


 


(vii)         permit the creation of
any lien ranking prior to or on a parity with the lien of this
Indenture with respect to any part of the Indenture Collateral or, except as otherwise
permitted or contemplated herein, terminate the lien of this Indenture on any property at any
time subject hereto or deprive any Holder of the security provided by the lien of this
Indenture; and provided, further, that such action shall not, as
evidenced by an Opinion of Counsel, cause the Issuer to be subject to an entity
level tax or be classified as a taxable mortgage pool within the meaning of
Section 7701(i) of the Code.


 


The
Indenture Trustee may in its discretion determine whether or not any Notes
would be affected by any supplemental indenture and any such determination
shall be conclusive upon the Holders of all Notes, whether theretofore or
thereafter authenticated and delivered hereunder. The Indenture Trustee shall
not be liable for any such determination made in good faith.


 


It
shall not be necessary for any Act of Holders under this Section 9.02
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.


 


Promptly
after the execution by the Issuer and the Indenture Trustee of any supplemental
indenture pursuant to this Section 9.02, the Indenture Trustee
shall mail to the Holders of the Notes to which such amendment or supplemental
indenture relates a copy of such supplemental Indenture or a notice setting
forth in general terms the substance of such supplemental indenture. Any failure of
the Indenture Trustee to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture.


 


Notwithstanding
any provision contained herein to the contrary, prior to entering into any
supplemental indenture pursuant to Section 9.02, the Issuer and
Indenture Trustee shall obtain written confirmation from each of Moody’s and
S&P that entry by the Issuer and Indenture Trustee into such supplemental
indenture satisfies the Moody’s Rating Condition and the S&P Rating
Condition, respectively.


 


Section 9.03.   Execution of Supplemental
Indentures.


 


In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modification thereby
of the trusts created by this Indenture, the Indenture Trustee shall be
entitled to receive, and subject to Sections 6.01 and 6.02, shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Indenture Trustee may, but shall not be obligated to, enter into
any such supplemental indenture that affects the Indenture Trustee’s own
rights, duties, liabilities or immunities under this Indenture or otherwise.
The Indenture Trustee shall provide copies of each supplemental indenture to
the Rating Agencies.


 


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Section 9.04.   Effect of Supplemental Indenture.


 


Upon
the execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and shall be deemed to be modified and amended in
accordance therewith with respect to the Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities and
immunities under this Indenture of the Indenture Trustee, the Issuer and the
Holders shall thereafter be determined, exercised and enforced hereunder subject
in all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all purposes.


 


Section 9.05.   Reference in Notes to Supplemental Indentures.


 


Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee
shall, bear a notation in form approved by the Indenture Trustee as to any
matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.


 


Section 9.06.   Amendment of this Indenture Generally.


 


The
parties acknowledge and agree that this Indenture may only be amended, modified
or restated through the execution of a Supplemental Indenture pursuant to the
terms of this Article IX.


 


ARTICLE X          MISCELLANEOUS


 


Section 10.01.   Compliance Certificates and Opinions, etc.


 


Upon
any application or request by the Issuer to the Indenture Trustee to take any
action under any provision of this Indenture (including a notice of redemption
under Section 4.04), the Issuer shall furnish to the Indenture
Trustee an Officer’s Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with, and, if required, an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as
to which the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished.


 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:


 


(a)           a statement that each signatory of
such certificate or opinion has read or has caused to be read such covenant or
condition and the definitions herein relating thereto;


 


(b)           a brief statement as to the nature
and scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;


 


56

















 


(c)           a statement that, in the opinion
of each such signatory, such signatory has made such examination or
investigation as is necessary to enable such signatory to express an informed
opinion as to whether or not such covenant or condition has been complied with;


 


(d)           a statement as to whether, in the
opinion of each such signatory, such condition or covenant has been complied
with; and


 


(e)           if the signer of document is required
to be Independent, the Statement required by the definition of the term “Independent”.


 


Section 10.02.   Form of Documents Delivered to Indenture Trustee.


 


In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.


 


Any
certificate or opinion of an Authorized Officer of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which the
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of an appropriate Person stating that the information with
respect to such factual matters is in the possession of the such Person, unless
such counsel knows that the certificate or opinion or representations with
respect to such matters are erroneous.


 


Where
any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.


 


Whenever
in this Indenture, in connection with any application or certificate or report
to the Indenture Trustee, it is provided that the Issuer shall deliver any
document as a condition of the granting of such application, or as evidence of
the Issuer’s compliance with any term hereof, it is intended that the truth and
accuracy in all material respects, at the time of the granting of such
application or at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall in such case
be conditions precedent to the right of the Issuer to have such application
granted or to the sufficiency of such certificate or report. The foregoing
shall not, however, be construed to affect the Indenture Trustee’s right to
rely upon the truth and accuracy of any statement or opinion contained in any
such document as provided in Article VI.


 


Section 10.03.   Acts of Holders.


 


(a)           Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and


 


57

















 


evidenced
by one or more instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing; and except as herein
otherwise expressly provided such action shall become effective when such
instrument or instruments are delivered to the Indenture Trustee, and, where it
is hereby expressly required, to the Issuer. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section 10.03.


 


(b)           The fact and date of the execution by
any person of any such instrument or writing may be proved in any manner that
the Indenture Trustee deems sufficient.


 


(c)           The ownership of Notes shall be
proved by the Note Register.


 


(d)           Any request, demand, authorization,
direction, notice, consent, waiver or other action by the Holder of any Notes
shall bind the Holder of every Note issued upon the registration thereof or in
exchange therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Indenture Trustee or the Issuer in reliance thereon,
whether or not notation of such action is made upon such Note.


 


Section 10.04.   Notices,
etc., to Indenture Trustee and Others.


 


Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other documents provided or permitted by this Indenture shall be in
writing and if such request, demand, authorization, direction, notice, consent,
waiver or act of Holders is to be made upon, given or furnished to or filed
with:


 


(i)                 the
Indenture Trustee by any Holder or by the Issuer shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with the
Indenture Trustee and received at the Corporate Trust Office, or


 


(ii)                the
Issuer by the Indenture Trustee or by any Holder shall be sufficient for every
purpose hereunder if in writing and mailed first–class, postage prepaid to the
Issuer addressed to: OMX Timber Finance Investments I, LLC, 150 Pierce Road,
Itasca, IL 60143, Attention: Executive Vice-President and Chief Financial
Officer, or at any other address previously furnished in writing to the
Indenture Trustee by the Issuer. The Issuer shall promptly transmit any notice
received by it from the Holders to the Indenture Trustee.


 


Notices
required to be given to the Rating Agencies by the Issuer or the Indenture
Trustee shall be in writing, personally delivered or mailed by certified mail,
return receipt requested, to (i) in the case of S&P, at the following
address: Standard and Poor’s Ratings Services, 55 Water Street, 41st Floor, New
York, New York 10007, Attention: ABS Surveillance Group, and (ii) in the
case of Moody’s, at the following address: Moody’s Investors Service, 99 Church
Street, 4th Floor, New York, New York 10007, Attention: Monitoring Group -
Asset Finance Group; or as to each of the foregoing, at such other address as
shall be designated by written notice to the


 


58

















 


other
parties; provided, however, that no notice
shall be required to be given to the Rating agencies until the
Notes has been rated by such Rating Agency.


 


Section 10.05.   Notices
to Holders; Waiver.


 


Where
this Indenture provides for notice to Holders of any event, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, by nationally recognized overnight courier or by first–class,
postage prepaid to each Holder affected by such event, at his address as it
appears on the Note Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice nor any defect in any notice so mailed to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders, and any
notice that is mailed in the manner herein provided shall conclusively be
presumed to have been duly given.


 


Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by any Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Indenture Trustee but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such a waiver.


 


In
case, by reason of the suspension of regular mail service as a result of a
strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to be
a sufficient giving of such notice.


 


Where
this Indenture provides for notice to the Rating Agencies, failure to give such
notice shall not affect any other rights or obligations created hereunder, and
shall not under any circumstance constitute an Event of Default.


 


Section 10.06.   Alternate
Payment and Notice Provisions.


 


Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the Issuer
may enter into any agreement with any Holder of a Note providing for a method
of payment, or notice by the Indenture Trustee or any Paying Agent to such
Holder, that is different from the methods provided for in this Indenture for
such payments or notices. The Issuer will furnish to the Indenture Trustee a
copy of each such agreement and the Indenture Trustee will cause payments to be
made and notices to be given in accordance with such agreements.


 


Section 10.07.   Effect
of Headings.


 


The
Article and Section headings herein are for convenience only and
shall not affect the construction hereof.


 


59

















 


Section 10.08.   Successors and Assigns.


 


All
covenants and agreements in this Indenture and the Notes by the Issuer shall
bind its successors and assigns, whether so expressed or not. All agreements of
the Indenture Trustee in this Indenture shall bind its successors, co-trustees
and agents.


 


Section 10.09.   Severability.


 


In
case any provision in this Indenture or in the Notes shall be invalid, illegal
or unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.


 


Section 10.10.   Benefits of Indenture.


 


Nothing
in this Indenture or in the Notes, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, and the
Holders, and any other party secured hereunder, and any other Person with an
ownership interest in any part of the Indenture Collateral, any benefit or any
legal or equitable right, remedy or claim under this Indenture.


 


Section 10.11.   Legal Holidays.


 


In
any case where the date on which any payment is due shall not be a Business
Day, then (notwithstanding any other provision of the Notes or this
Indenture) payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date
on which nominally due, and no interest shall accrue for the period from and
after any such nominal date.


 


Section 10.12.   GOVERNING LAW.


 


(a)              THIS INDENTURE,
EACH SUPPLEMENT AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.


 


(b)              EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE. Each party hereto (i) certifies
that no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver and (ii) acknowledges
that it and the other parties hereto have been induced to enter into this
Indenture by, among other things, the mutual waivers and certifications in this
subsection 11.12(b).


 


60

















 


Section 10.13.   Counterparts.


 


This
Indenture may be executed in any number of counterparts (including by
facsimile), each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.


 


Section 10.14.   Issuer Obligation.


 


No
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or
under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Indenture Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer
or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer or the Indenture Trustee or of
any successor or assign of the Indenture Trustee in its individual capacity,
except as any such Person may have expressly agreed (it being understood that
the Indenture Trustee has no such obligations in their individual capacity) and
except that any such partner, owner or beneficiary shall be fully liable, to
the extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing to
such entity. For all purposes of this Indenture, in the performance of any
duties or obligations of the Issuer hereunder shall be subject to, and entitled
to the benefits of, the terms and provisions of the Limited
Liability Company Agreement.


 


Section 10.15.   No Petition.


 


(a)              The Indenture
Trustee, by entering into this Indenture, and each Holder, by accepting a Note,
hereby covenant and agree that they will not prior to the date which is one
year and one day or, if longer, the preference period then in effect after
payment in full of the Notes rated by any Rating Agency, institute against the
Issuer, or join in any institution against the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, this Indenture or any
of the Transaction Documents.


 


(b)              Notwithstanding
any other provisions of the Notes, this Indenture or any other Transaction
Document, the obligations of the Issuer under the Notes and this Indenture and
any other Transaction Document are limited recourse obligations of the Issuer
payable solely from the Indenture Collateral and, following realization of the
Indenture Collateral and distribution, any claims of the Holders and the other
Secured Parties, and any other parties to any Transaction Document shall be
extinguished. No recourse shall be had against any officer, administrator,
member, director, employee, security holder or incorporator of the Issuer or
their respective successors or assigns for the payment of any amounts payable
under the Notes, this Indenture or any other Transaction Document. It is understood
that the foregoing provisions of this Section 10.15(b) shall not (i) prevent
recourse to the Indenture Collateral for the sums due or to become due under
any security, instrument or agreement which is part of the Indenture Collateral
or (ii) constitute a waiver, release or discharge of any indebtedness or
obligation evidenced by the Notes or secured by this Indenture or payable under
any other Transaction Document until such


 


61

















 


Indenture
Collateral has been realized and distributed, whereupon any such outstanding
indebtedness or obligation shall be extinguished.


 


Section 10.16.   Inspection; Confidentiality.


 


The
Issuer agrees that, on reasonable prior notice, it will permit any
representative of the Indenture Trustee, during the Issuer’s normal business
hours, and in a manner that does not unreasonably interfere with the Issuer’s
normal operations, to examine all the books of account, records, reports and
other papers of the Issuer, to make copies and extracts therefrom, to cause
such books to be audited by Independent certified public accountants, and to
discuss the Issuer’s affairs, finances and accounts with the Issuer’s officers,
employees, and Independent certified public accountants, all at such reasonable
times, in such reasonable manner, and as often as may be reasonably requested.
The Indenture Trustee shall and shall cause its representatives, its legal
counsel and its auditors to hold in confidence all such information except to
the extent disclosure may be required by law (and all reasonable applications
for confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder and under applicable law. Notwithstanding
anything to the contrary contained herein, all parties to which this Indenture
relates may disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure of the transaction and all materials of any
kind (including opinions or other tax analyses) that are provided to such
investors relating to such tax treatment and tax structure. For purposes of
this paragraph, the terms “tax treatment” and “tax structure” have the meaning
given to such terms under Treasury Regulation section 1.6011-4(c).


 


62

















 


IN WITNESS WHEREOF,  the Issuer and the Indenture
Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized, all as of the day and year first above
written.


 


	
   

  	
  OMX
  TIMBER FINANCE INVESTMENTS I,

  LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ted Crumley

  
	
   

  	
   

  	
  Ted
  Crumley, Regular Manager

  
				



 


Indenture
Signature Pages


OMX
Timber Finance Investments I, LLC


 

















 


	
  STATE
  OF IDAHO

  	
  )

  
	
   

  	
  )
  ss.:

  
	
  COUNTY
  OF ADA

  	
  )

  



 


On
this 8th day of December, 2004, before me personally
appeared TED CRUMLEY, to me known, who being by me duly sworn, did depose and
say that he resides at, Boise, Idaho, that he is the Regular Manager of the
Issuer, the limited liability company described in and which executed the above
instrument; and that he signed his name thereto by like order.


 


	
   

  	
  /s/
  Cherie H. Anderson

  
	
   

  	
  Notary
  Public for Idaho

  
	
   

  	
  Residing
  at Meridian, Idaho

  
	
   

  	
  My
  Comission expires: 8/5/09

  



 


Signature
Pages


OMX
Timber Finance Investments I, LLC


 

















 


IN WITNESS WHEREOF, the Issuer and the
Indenture Trustee have caused their names to be signed hereto by their
respective officers thereunto duly authorized, all as of the day and year first above
written.


 


	
   

  	
  WELLS
  FARGO BANK NORTHWEST, N.A., 

  not in its individual capacity but solely as the

  Indenture Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Val T. Orton

  
	
   

  	
  Name:

  	
  Val
  T. Orton

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 


Indenture
Signature Pages


OMX
Timber Finance Investments I, LLC


 

















 


	
  STATE
  OF Utah

  	
  )

  
	
   

  	
  )
  ss.:

  
	
  COUNTY
  OF Salt Lake

  	
  )

  



 


On
this December 8, 2004, before me personally appeared Val T.
Orton, to me known, who being by me duly sworn, did depose and say, that he
resides at Salt Lake City and that he is the Vice President of the
Indenture Trustee, one of the entities described in and which executed the
above instrument; and that he signed his name thereto by like order.


 


	
   

  	
  /s/
  SHARLEE HACKWORTH

  
	
   

  	
  Notary
  Public

  
	
   

  	
   

  
	
   

  	
  NOTARY
  PUBLIC

  SHARLEE
  HACKWORTH

  299
  S Main Street, 12th Floor

  Salt
  Lake City, UT 84111 

  My
  Commission Expires Dec 4, 2007

  State
  of Utah

  



 


Indenture
Signature Pages


OMX
Timber Finance Investments I, LLC


 














 


EXHIBIT A


 


[FORM OF CLASS A-1 NOTE]


 


CLASS A-1 NOTE


 


THIS
NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES OR BLUE
SKY LAW OF ANY STATE. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT
THIS NOTE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER REQUIREMENTS OF LAWS AND ONLY (1) PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A U.S. PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A (A “QIB”), AND WHO IS ALSO A QUALIFIED PURCHASER
WITHIN THE MEANING OF SECTION 3(c)(7) UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (A “QUALIFIED 
PURCHASER”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR
THE ACCOUNT OF A QIB WHO IS ALSO A QUALIFIED PURCHASER, WHOM THE HOLDER HAS
INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO A U.S. PERSON WHO
IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (WITHIN THE MEANING OF RULE 501
(a)(1)—(3) OR (7) UNDER THE SECURITIES ACT) WHO IS ALSO A QUALIFIED
PURCHASER, PURCHASING FOR INVESTMENT AND NOT FOR DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, IN EACH CASE, SUBJECT TO (A) THE RECEIPT BY THE
INDENTURE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE
INDENTURE AND (B) THE RECEIPT BY THE INDENTURE TRUSTEE OF SUCH OTHER
EVIDENCE ACCEPTABLE TO THE INDENTURE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE
OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER REQUIREMENTS OF
LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF ANY STATE OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION, OR (3) TO A U.S. PERSON
PURSUANT TO ANOTHER EXEMPTION AVAILABLE UNDER THE SECURITIES ACT AND IN
ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS. THE PURCHASE OF THIS NOTE
WILL BE DEEMED A REPRESENTATION BY THE ACQUIRER THAT EITHER: (I) IT IS
NOT, AND IS NOT ACQUIRING OR HOLDING THIS NOTE, DIRECTLY OR INDIRECTLY, ON
BEHALF OF OR WITH ANY ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” WITHIN THE MEANING
OF SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED (“ERISA”), THAT IS SUBJECT TO TITLE I OF ERISA, A
“PLAN” WITHIN THE MEANING OF AND SUBJECT TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”); AN ENTITY THE UNDERLYING
ASSETS OF WHICH ARE DEEMED TO INCLUDE ASSETS OF ANY SUCH PLAN, OR A PLAN THAT
IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR NON-U.S. LAW (“SIMILAR LAW”)
THAT IS SUBSTANTIVELY SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE, OR


 


A-1

















 


(B) ITS
ACQUISITION AND HOLDING OF THIS NOTE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975
OF THE CODE OR A VIOLATION OF SIMILAR LAW.


 


[IF HELD BY DTC] [UNLESS THIS
NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]


 


A-2

















 


	
  REGISTERED

  	
  $                        

  
	
  No.
  A–1–

  	
  December [    ], 2004

  



 


SEE REVERSE FOR CERTAIN DEFINITIONS


 


	
   

  	
  [144A
  CUSIP
  NO.                     ]

  



 


OMX
TIMBER FINANCE INVESTMENTS I, LLC, a limited liability company organized and
existing under the laws of the State of Delaware (herein referred to as the “Issuer”),
for value received, hereby promises to pay to
                     
, or registered assigns, the principal sum of                     
DOLLARS payable on October 31, 2019, or on January 29, 2020, if
extended pursuant to Section 4.04 of the
Indenture (such date, the “Maturity Date”). The unpaid
principal balance of this Note shall bear interest at a rate of [                ]% per annum (the “Note Interest Rate”), calculated based on twelve
30-day months in a 360-day year. Interest on the unpaid principal balance shall
be due and payable on each April 30 and October 31, beginning April 30,
2005, through and until the Maturity Date (each, a “Payment
Date”). If the Maturity Date is extended pursuant to Section 4.04 of the Indenture, in consideration of such
extension, the Note Interest Rate shall be increased (for the period beginning
on October 31, 2019, and extending to January 29, 2020) to a rate of
interest (the “Extension Note Interest Rate”) which is the
greater of (i) the Class A-1 Note Interest Rate plus two hundred
(200) basis points (2.00%) and (ii) a rate per annum equal to the
lesser of (A) LIBOR plus [        ] basis points ([      ]%)and (B) thirteen (13.00%). This Note is not subject to
prepayment at the Issuer’s option prior to the Maturity Date.


 


The
principal of and interest on this Note are payable in such coin or currency of
the United States as at the time of payment is legal tender for payment of
public and private debts. All payments made by the Issuer with respect to this
Note shall be applied in accordance with Section 8.02 of the
Indenture.


 


Reference
is made to the further provisions of this Note set forth on the reverse hereof,
which shall have the same effect as though fully set forth on the face of this
Note.


 


Unless
the certificate of authentication hereon has been executed by the Indenture
Trustee whose name appears below by manual signature, this Note shall not be
entitled to any benefit under the Indenture referred to on the reverse hereof,
or be valid or obligatory for any purpose.


 


A-3

















 


IN
WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually
or in facsimile, by its Responsible Officer as of the date set forth above.


 


	
   

  	
  OMX
  TIMBER FINANCE INVESTMENTS I, 

  LLC,  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


This
is one of the Notes of OMX Timber Finance Investments I, LLC designated above
and referred to in the within–mentioned Indenture.


 


	
   

  	
  WELLS
  FARGO BANK NORTHWEST, N.A., 

  not in its individual capacity but solely as Indenture 

  Trustee,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


A-4

















 


[REVERSE OF NOTE]


 


This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its OMX Timber Finance Investments I, LLC Notes
due 2019 (herein called the “Notes”), all issued under an Indenture,
dated as of December 21, 2004 (such indenture, as supplemented or amended,
is herein called the “Indenture”), between the Issuer and Wells Fargo
Bank Northwest, N.A., as indenture trustee (the “Indenture Trustee”, which
term includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights and obligations thereunder of the Issuer,
the Indenture Trustee and the Holders of the Notes. The Notes are subject to
all terms of the Indenture. All terms used in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.


 


Notwithstanding the foregoing, the entire unpaid
principal balance of the Notes shall be due and payable on the date on which an
Event of Default shall have occurred and be continuing and the Indenture
Trustee or the Majority Holders have declared the Notes to be immediately due
and payable in the manner provided in Section 5.02 of the
Indenture. All principal payments on the Notes shall be made pro rata to the
Holders entitled thereto.


 


Each Holder by acceptance of a Note covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer under the Indenture on the Notes or under any
certificate or other writing delivered in connection therewith, against the
Indenture Trustee in its individual capacity.


 


On each Payment Date, commencing April 30,
2005, the Indenture Trustee or Paying Agent shall distribute to the Person in
whose name this Note is registered at the close of business on the Record Date
the interest and principal due on this Note.


 


During each Interest Accrual Period, this Note will
bear interest at the Note Interest Rate, provided that for the period beginning
on October 31, 2019, and extending to January 29, 2020, this Note
will bear interest at the Extension Note Interest Rate.


 


Distributions on this Note will be made by the
Indenture Trustee or Paying Agent by wire transfer or, if no account
information is provided, by check mailed to the address of the Person entitled
thereto as such name and address shall appear on the Note Register or, upon
written request to the Indenture Trustee, by wire transfer of immediately
available funds to the account of the Person entitled thereto as shall appear
on the Note Register without the presentation or surrender of this Note or the
making of any notation thereon, at a bank or other entity having appropriate
facilities therefor, and, in the case of wire transfers, at the expense of such
Person unless such Person shall own of record Notes which have principal
balances aggregating at least $500,000.


 


Notwithstanding the above, the final distribution on
this Note, whether upon the Scheduled Maturity Date or the Extended Maturity
Date, as applicable, will be made after due notice by the Indenture Trustee of
the pendency of such distribution and only upon presentation


 


A-5

















 


and
surrender of this Note at the office or agency maintained for that purpose by
the Note Registrar in New York, New York.


 


As
provided in the Indenture, deposits and withdrawals from the Class A-1
Notes Account may be made by the Indenture Trustee from
time to time for purposes other than distributions to the Holders
pursuant to the terms of Section 8.02 of the
Indenture.


 


As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Note is registrable in the Note Register upon surrender of
this Note for registration of transfer at the offices or agencies maintained by
the Note Registrar in New York, New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to, the Indenture Trustee,
duly executed by the holder hereof or such holder’s attorney duly authorized in
writing, and thereupon one or more new Notes in authorized denominations
evidencing the same aggregate principal balance will be issued to the
designated transferee or transferees.


 


The
Note is issuable only as a registered Note. As provided in the Indenture and
subject to certain limitations therein set forth, the Note is exchangeable for
a new Note evidencing the same undivided ownership interest, as requested by
the holder surrendering the same.


 


No
service charge will be made for any such registration of transfer or exchange,
but the Note Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.


 


The
Indenture Trustee and any agent of the Indenture Trustee may treat the person
in whose name this Note is registered as the owner hereof for all purposes, and
none of the foregoing shall be affected by notice to the contrary.


 


The
obligations and responsibilities created by the Indenture shall terminate upon
the payment to Holders of all amounts required to be paid to them pursuant to
the Indenture and the other Transaction Documents and the disposition of all of
the Indenture Collateral pursuant to the terms of Section 4.06 of the
Indenture.


 


A-6

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(1)


 


The following exchanges of a part of this Global Note for
an interest in another Global Note or for an Individual
Note, or exchanges of a part of another Global Note or Individual Note for an interest in this Global Note, have been made:


 


	
  Date of

  Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount

  of this Global

  Note

  	
   

  	
  Amount of

  increase in

  Principal Amount

  of this Global

  Note

  	
   

  	
  Principal Amount

  of this Global

  Note following

  such decrease (or

  increase)

  	
   

  	
  Signature of

  Responsible

  Officer of Note

  Registrar

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(1)                 This should be included only if the Note
is issued in global form.


 


A-7

















 


ASSIGNMENT


 


Social
Security or taxpayer I.D. or other identifying number of assignee


 


FOR
VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto


 


 


 


(name and address of assignee)


 


the
within Note and all rights thereunder, and hereby irrevocably constitutes and
appoints                        ,
attorney, to transfer said Note on the books kept for registration thereof,
with full power of substitution in the premises.


 


	
  Dated:

  	
   

  	
   

  	
  (2)

  



 


 


Signature Guaranteed:


 






(2)     NOTE: The
signature to this assignment must correspond with the name of the registered
owner as it  appears on the face of the
within Note in every particular, without alteration, enlargement or any change
whatsoever.


 


A-8














 


EXHIBIT B


 


WIRING INSTRUCTIONS FORM


 


, 2004


 


Wells
Fargo Bank Northwest, N.A.,


as
the Indenture Trustee and Paying Agent


299
South Main Street


12th
Floor


Salt
Lake City, Utah 84111


Attention:
Corporate Trust Services


 


Re:    OMX Timber Finance
Investments I, LLC Class A-1 Secured Notes due 2019


 


Dear
Sir:


 


In connection with the sale of the above–captioned Note by                     to
                         ,
(“Transferee”) you, as Paying Agent, are instructed to make all
remittances to Transferee as Holder as of                 ,                
by wire transfer. For such wire transfer, the wiring instructions are as
follows:


 


 


 


	
   

  	
   

  
	
   

  	
  Transferee

  



 


Holder’s
mailing address: 


Name:


Address:


 


B-1

















 


EXHIBIT C-1


 


FORM OF TRANSFEREE LETTER


 


OMX Timber Finance Investments I, LLC,

as the Issuer


c/o
Office Max Incorporated


150
Pierce Road


Itasca,
IL 60143


Attention:
Executive Vice-President and Chief Financial Officer


 


Wells
Fargo Bank Northwest, N.A.,


as
the Indenture Trustee


299
South Main Street


12th
Floor


Salt
Lake City, Utah 84111


Attention:
Corporate Trust Services


 


                    ,
20   


 


Re:          OMX Timber Finance
Investments I, LLC Notes due 2019


 


Ladies
and Gentlemen:


 


In
connection with our acquisition of the above–captioned Notes, we certify that (a) we
understand that the Notes are not being registered under the Securities Act of
1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we are a “U.S. Person” as
defined in the Indenture pursuant to which the Notes were issued (the “Indenture”),
(c) we are an “Institutional Accredited Investor,” as defined in the
Indenture, and a “Qualified Purchaser” as defined in the Indenture, and have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Notes, (d) we
have had the opportunity to ask questions of and receive answers from the
Issuer concerning the purchase of the Notes and all matters relating thereto or
any additional information deemed necessary to our decision to purchase the
Notes, (e) we are acquiring the Notes for investment for our own account
and not with a view to any distribution of such Notes (but without prejudice to
our right at all times to sell or otherwise dispose of the Notes in accordance
with clause (g) below), (f) we have not
offered or sold any Notes to, or solicited offers to buy any Notes from, any
person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of Section 5
of the Act, (g) we will not sell, transfer or otherwise dispose of any
Note unless (1) such sale, transfer or other disposition is made pursuant
to an effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this certificate that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the


 


C-1-1

















 


purchaser
or transferee of such Note has executed and delivered to you a certificate to
substantially the same effect as this certificate if required by the Indenture,
and (3) the purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Indenture, (h) the purchaser will
comply with the provisions of Section 4.05 of the Indenture as to
treatment of the Notes under applicable tax law, and (i) the purchaser is
not, and is not acquiring or holding a Note, directly or indirectly on behalf
of or with any assets of an “employee benefit plan” within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) that is
subject to Title I of ERISA, a “plan” within the meaning of and subject to Section 4975
of the Internal Revenue Code of 1986, as amended (the “Code”), an entity
the underlying assets of which are deemed to include assets of any such plan,
or a plan that is subject to any federal, state, local or non-U.S. law (“Similar
Law”) that is substantively similar to the provisions of Section 406 of
ERISA or Section 4975 of the Code; or the purchaser’s acquisition and
holding of such Note will not constitute or result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code or
a violation of Similar Law.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print
  Name of Transferee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Responsible Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  cc:
  

  	
  Office
  Max Incorporated

  	
   

  
	
   

  	
  150 Pierce Road

  	
   

  
	
   

  	
  Itasca, IL 60143

  	
   

  
	
   

  	
  Attention: Executive
  Vice-President and General Counsel

  	
   

  



 


C-1-2

















 


EXHIBIT C-2


 


FORM OF RULE 144A CERTIFICATION


 


OMX Timber Finance Investments I, LLC,

as the Issuer


c/o
OfficeMax Incorporated


150
Pierce Road


Itasca,
IL 60143


Attention:
Executive Vice-President and Chief Financial Officer


 


Wells
Fargo Bank Northwest, N.A.,

as the Indenture Trustee


299
South Main Street


12th
Floor


Salt
Lake City, Utah 84111


Attention:
Corporate Trust Services


 


                    ,
20    


 


Re:          OMX Timber Finance
Investments I, LLC Notes due 2019


 


Ladies
and Gentlemen:


 


In
connection with our acquisition any of the above Notes we certify that (a) we
understand that the Notes are not being registered under the Securities Act of
1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have had the opportunity
to ask questions of and receive answers from the Issuer concerning the purchase
of the Notes and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Notes, (c) we have not,
nor has anyone acting on our behalf offered, transferred, pledged, sold or
otherwise disposed of the Notes, any interest in the Notes or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or
other disposition of the Notes, any interest in the Notes or any other similar
security from, or otherwise approached or negotiated with respect to the Notes,
any interest in the Notes or any other similar security with, any person in any
manner, or made any general solicitation by means of general advertising or in
any other manner, or taken any other action, that would constitute a
distribution of the Notes under the Act or that would render the disposition of
the Notes a violation of Section 5 of the Act or require registration
pursuant thereto, nor will act, nor has authorized or will authorize any person
to act, in such manner with respect to the Notes, (d) we are a U.S.
person, as defined in Regulation S under the Act, (e) we are a “qualified
institutional buyer” as that term is defined in Rule 144A under the Act
and a “qualified purchaser” within the meaning of Section 3(c)(7) of
the Investment Company Act of 1940, as amended, and have completed the form of
certification to that effect attached hereto as Annex 1, and (f) we are
not, and are not acquiring or holding the


 


C-2-1

















 


Notes,
directly or indirectly on behalf of or with any assets of an “employee benefit
plan” within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”) that is subject to
Title I of ERISA, a “plan” within the meaning of and subject to Section 4975
of the Internal Revenue Code of 1986, as amended (the “Code”), an entity
the underlying assets of which are deemed to include assets of any such plan,
or a plan that is subject to any federal, state, local or non-U.S. law (“Similar
Law”) that is substantively similar to the provisions of Section 406
of ERISA or Section 4975 of the Code; or the purchaser’s acquisition and
holding of such Note will not constitute or result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code or
a violation of Similar Law. We are acquiring the Notes for our own account or
for resale pursuant to Rule 144A and further, understand that such Notes
may be resold, pledged or transferred only (i) to a person reasonably
believed to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom notice is
given that the resale, pledge or transfer is being made in reliance on Rule 144A,
or (ii) pursuant to another exemption from registration under the Act.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print
  Name of Transferee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Responsible Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  cc: 

  	
  Office Max Incorporated

  	
   

  
	
   

  	
  150 Pierce Road

  	
   

  
	
   

  	
  Itasca, IL 60143

  	
   

  
	
   

  	
  Attention: Executive
  Vice-President and General Counsel

  	
   

  



 


C-2-2

















 


ANNEX 1 TO EXHIBIT C-2


 


[FORM OF CERTIFICATION]


 


[Date]


 


OMX Timber Finance Investments I, LLC,

as the Issuer


c/o
OfficeMax Incorporated


150
Pierce Road


Itasca,
IL 60143


Attention:
Executive Vice-President and Chief Financial Officer


 


Wells
Fargo Bank Northwest, N.A.,


as
the Indenture Trustee


299
South Main Street


12th
Floor


Salt
Lake City, Utah 84111


Attention:
Corporate Trust Services


 


                    ,
20  


 


Re:          OMX Timber Finance Investments
I, LLC Notes due 2019


 


Ladies
and Gentlemen:


 


In
connection with our purchase of the Notes, the undersigned certifies to each of
the parties to whom this letter is addressed that it is a qualified
institutional buyer (as defined in Rule 144A under the Securities Act of
1933, as amended (the “Act”)) as follows:


 


1.             It owns and/or
invests on a discretionary basis eligible securities (excluding affiliate’s
securities, bank deposit notes and CD’s, loan participations, repurchase
agreements, securities owned but subject to a repurchase agreement and
currency, interest rate and commodity swaps), as described below:


 


Amount: $                           ;
and


 


2.             The dollar
amount set forth above is:


 


a.             greater than $100 million
and the undersigned is one of the following entities:


 


C-2-3

















 


	
   

  	
  (1)

  	
  o

  	
   

  	
  an insurance company as
  defined in Section 2(13) of the Act*; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  o

  	
   

  	
  an investment company
  registered under the Investment Company Act or any business development
  company as defined in Section 2(a)(48) of the Investment Company Act of
  1940 or as defined in Section 202(a)(22) of the Investment Advisers Act
  of 1940; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (3)

  	
  o

  	
   

  	
  a Small Business
  Investment Company licensed by the U.S. Small
  Business Administration under Section 301(c) or (d) of the
  Small Business Investment Act of 1958; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (4)

  	
  o

  	
   

  	
  a plan
  (i) established and maintained by a state, its political subdivisions,
  or any agency or instrumentality of a state or its political subdivisions,
  the laws of which permit the purchase of securities of this type, for the
  benefit of its employees and (ii) the governing investment guidelines of
  which permit the purchase of securities of this type; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (5)

  	
  o

  	
   

  	
  a corporation (other than
  a U.S. bank, savings and loan association or equivalent foreign institution),
  partnership, Massachusetts or similar statutory or business trust, or an
  organization described in Section 501 (c)(3) of the Internal
  Revenue Code; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (6)

  	
  o

  	
   

  	
  a U.S. bank, savings and loan
  association or equivalent foreign institution, which has an audited net worth
  of at least $25 million as demonstrated in its latest annual financial
  statements as of a date not more than 16 months preceding the date of sale in
  the case of a U.S. institution or 18 months in the case of a foreign
  institution; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (7)

  	
  o

  	
   

  	
  an investment adviser
  registered under the Investment Advisers Act of 1940; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  b.

  	
  o

  	
   

  	
   

  	
  greater than $10 million,
  and the undersigned is a broker-dealer registered with the SEC; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c.

  	
  o

  	
   

  	
   

  	
  less than $10 million, and
  the undersigned is a broker-dealer registered with the SEC and will only
  purchase Rule 144A securities in riskless principal transactions (as
  defined in Rule 144A); or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  d.

  	
  o

  	
   

  	
   

  	
  less than $100 million,
  and the undersigned is an investment company registered under the Investment
  Company Act of 1940, which, together with one or more registered investment
  companies having the same or an affiliated investment adviser, owns at least
  $100 million of eligible securities; or

  



 






*              A  purchase by an insurance company for one or more of
its separate accounts, as defined by section 2(a)(37) of the Investment Company
Act of 1940, which
are neither registered nor required to be registered thereunder, shall be
deemed to be a purchase for the account of such insurance company.


 


D-4

















 


	
  e.

  	
  o

  	
   

  	
   

  	
  less than $100 million,
  and the undersigned is an entity, all the equity owners of which are
  qualified institutional buyers.

  



 


The
undersigned further certifies that it is purchasing Notes for its own account
or for the account of others that independently qualify as “Qualified
Institutional Buyers” as defined in Rule 144A. It is aware that the sale
of the Notes is being made in reliance on its continued compliance with Rule 144A.
It is aware that the transferor may rely on the exemption from the provisions
of Section 5 of the Act provided by Rule 144A. The undersigned
understands that the Notes may be resold, pledged or transferred pursuant to Rule 144A
only to a person reasonably believed to be a Qualified Institutional Buyer that
purchases for its own account or for the account of a Qualified Institutional
Buyer to whom notice is given that the resale, pledge or transfer is being made
in reliance in Rule 144A.


 


The
undersigned agrees that if at some time before the expiration of the holding
period described in Rule 144 it wishes to dispose of or exchange any of
the Notes, it will not transfer or exchange any of the Notes to a Qualified
Institutional Buyer without first obtaining a letter in the form hereof from
the transferee and delivering such certificate to the addressees hereof.


 


The
undersigned further certifies that it is (x) a “U.S. person” as defined in
Regulation S of under the Securities Act and (y) a “qualified purchaser”
within the meaning of Section 3(c)(7) of the Investment Company Act
of 1940.


 


IN WITNESS WHEREOF, this document has been executed by the undersigned
who is duly authorized to do so on behalf of the undersigned Qualified
Institutional Buyer on the          day
of                             ,
         .


 


	
   

  	
  Name
  of Institution

  
	
   

  	
  Signature

  
	
   

  	
  Name

  
	
   

  	
  Title

  



 


	
  cc:

  	
  Office
  Max Incorporated

  
	
   

  	
  150
  Pierce Road

  
	
   

  	
  Itasca,
  IL 60143

  
	
   

  	
  Attention:
  Executive Vice-President and General Counsel

  



 


D-5

















 


EXHIBIT D


 


[FORM OF REDEMPTION NOTICE]


 


[TO
EACH HOLDER]


October 1, 2019


 


Re:          OMX Timber Finance
Investments I, LLC Notes due 2019 (the “Notes”)


 


Ladies
and Gentlemen:


 


Pursuant
to the terms of Section 4.04 of the Indenture dated as of December 21,
2004, (the “Indenture”) between OMX Timber Finance Investments I, LLC,
as issuer (the “Issuer”) and Wells Fargo Bank Northwest, N.A., as
indenture trustee (the “Indenture Trustee”), this letter serves as
notice to you that, as of the date hereof:


 


[Check
one below]


 


o    We have not
received notice from the Issuer that it intends to redeem fully the captioned
Notes on the Scheduled Maturity Date (which is October 31, 2019). We are
obligated as Indenture Trustee to extend the term of the Notes to the Extended
Maturity Date (which is January 29, 2020) unless we receive instruction by
October 21, 2019, from Holders evidencing more than 50% of the Aggregate
Outstanding Principal Balance of all of the Notes not to extend such maturity.


 


o    We have
received notice from the Issuer dated September [  ], 2019, that
it intends to redeem fully the captioned Notes, together with all accrued and
unpaid interest thereon, on the Scheduled Maturity Date. In the event the Issuer
fails to so redeem the Notes on the Scheduled Maturity Date, we will be
obligated as Indenture Trustee to extend the term of the Notes to the Extended
Maturity Date (which is January 29, 2020) unless we receive instruction by
October 21, 2019, from Holders evidencing more than 50% of the Aggregate
Outstanding Principal Balance of all of the Notes not to extend such maturity
upon such failure to redeem.


 


If,
under the circumstances described above, you do not wish for the maturity of
the Notes to be extended to the Extended Maturity Date, you must notify us in
writing at the address set forth below:


 


Wells Fargo Bank Northwest, N.A.,

299 South Main Street, 12th Floor

Salt Lake City, Utah 84111

Attention: Corporate Trust Services

Reference: OMX Timber Finance Investments I, LLC Notes due 2019


 


We
must receive your notice on or before October 21, 2019.


 


In
the event that Holders evidencing more than 50% of the Aggregate Outstanding
Principal Balance of all of the Notes instruct us not to extend the maturity of
the Notes as described


 


D-1

















 


above,
remedies shall be exercised pursuant to Article V of the
Indenture after the Scheduled Maturity Date.


 


Capitalized
terms used but not defined herein shall have the meanings assigned in the
Indenture.


 


	
   

  	
  WELLS
  FARGO BANK NORTHWEST, N.A.,

  not in its individual capacity but solely as the 

  Indenture Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


D-2